Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction. (b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets. (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto. (d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Newpark Resources Inc), Asset Purchase Agreement (Newpark Resources Inc)
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of and such time as this Agreement pursuant to Article IX (such earlier date being referred to herein as is terminated in accordance with its terms, except for the “Exclusivity Termination Date”)transactions contemplated by this Agreement, the Seller Company and Stockholders each Parent shall not, and shall not authorize or permit any of cause their respective officers, directors, employees, agents, representatives or controlled Affiliates and direct their Representatives not to, directly or indirectly: (i) , solicit, encourage, initiate, encourageenter into any Contract, facilitate or (to the extent within such Person’s control) permit encourage or entertain the submission of any proposal, inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) Person, relating to the direct or indirect dispositionacquisition of any of the capital stock or other Equity Securities of any member of the Company Group, or all or any material portion of the assets of any of the foregoing, whether by salein an acquisition structured as a merger, merger consolidation, exchange, sale of assets, sale of stock, or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiationsnegotiations regarding, furnish any information with respect to, assist or participate in, or enter into knowingly facilitate in any Contract, letter of intent, other manner any effort or other understanding (whether written, oral, binding, non-binding, attempt by any Person to do or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each seek to do any of the Seller foregoing, except in each case for discussions with Subscriber regarding the transactions contemplated by the Transaction Documents. The Company and Stockholders will terminate each Parent shall, and shall cause their respective Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person (other than the Subscriber, as contemplated by the Transaction Documents) conducted heretofore with respect to any Competing Transaction and request each Person of the matters addressed in this Section 5.04. In the event that has heretofore executed the Company or any Parent receives a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person proposal regarding any of the matters restricted by or on behalf of, or with respect tothis Section 5.04, the SellerCompany or such Parent, as applicable, shall provide the Business or the Purchased Assets.
Subscriber with prompt (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one 24 hours) written notice of, and all material information relating to, the same. Notwithstanding anything express or implied above in this Section 5.04, this Section 5.04 shall not be applicable to (1i) Business Dayany acquisition of property or assets by the Company Group in the ordinary course of business, notify Buyer in writing (ii) any acquisition of such inquiryproperty or assets of the Company or any Company Subsidiary by any other wholly owned Company Subsidiary, proposal(iii) the Recapitalization Transactions or (iv) subject to Section 10.06, offerany transaction that involves a merger or business combination of either Parent, any primary or secondary issuance or sale of Equity Securities of either Parent, or requestany other disposition of, including or other transaction related to, Equity Securities, businesses or assets of either Parent or any of their respective Subsidiaries other than, in each case, the identity Company Units or any property or assets of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoCompany Group.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 2 contracts
Sources: Sale and Subscription Agreement (Allegro Microsystems, Inc.), Sale and Subscription Agreement (Allegro Microsystems, Inc.)
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as Section 10.1 and the “Exclusivity Termination Closing Date”), the Seller and Stockholders shall not, and shall will not authorize permit or permit cause any of their respective officers, directors, employees, agentsinvestment bankers, representatives attorneys, affiliates, accountants or Affiliates other agents (collectively, the "Seller Representatives") to, directly or indirectly: (a) initiate, solicit, seek, encourage knowingly, entertain, support or take any action to facilitate any inquiries or the making of any offer or proposal that constitutes or is reasonably likely to lead to any proposal or offer (i) solicitfor a merger, initiateshare exchange, encourageconsolidation or other business combination concerning Seller, facilitate (ii) to Seller to acquire in any manner, directly or indirectly, any material part of the assets or any equity securities of Seller, (iii) with respect to any recapitalization or restructuring concerning Seller, or (iv) with respect to any other transaction similar to any of the extent within such Person’s controlforegoing relating to Seller, (b) permit the submission of any proposal, inquiryengage in negotiations or discussions with, or offer from provide any Person information or data concerning Seller to, any person (other than Buyer or any of its Affiliatesaffiliates or representatives) relating to the direct or indirect dispositionany such transaction, whether by sale, merger made before or otherwise, after the date of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessthis Agreement, or (iic) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, agreement in principle, acquisition agreement or any other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations agreement with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) transaction. From the date hereof through until the Exclusivity Termination earlier of the termination of this Agreement pursuant to Section 10.1 and the Closing Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptlyshall notify Buyer as promptly as practicable, and in any event within one (1) Business Daynot later than the next day, notify Buyer in writing of such inquiryany inquiries, proposalexpressions of interest, offerrequests for information or access to property, books or records, proposals or offers received by Seller, its officers or its directors or, to the best of its knowledge, any other Seller Representatives, from any person that informs Seller that it is considering making, or requesthas made, including a proposal relating to a transaction described above indicating, in connection with such notice, the identity name of the Person making person who made such inquiryinquiries, proposalexpressions of interest, offerrequests, proposals or requestoffers and the material terms and conditions of any proposals or offers, and the terms and details thereofthereafter shall keep Buyer informed, including on a copy current basis, of any writing (including any electronic mail) relating thereto.
(d) Each of changes in the Seller status and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect content of any such breach), without proposals or offers. Seller agrees that it will take the necessity necessary steps to promptly inform the Seller Representatives of posting a bond or other securitythe obligations undertaken in this Section 6.9.
Appears in 1 contract
Exclusivity. (a) From Seller and AOL agree that from the date hereof until of the execution of this Agreement through the Closing, or the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with its terms, the Seller and Stockholders shall notneither Seller, and shall not authorize AOL nor Seller's or permit any of their respective AOL's officers, directors, employeesaffiliates, agents, agents or representatives or Affiliates towill, directly or indirectly: :
(i) submit, solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the submission of discuss with third parties any proposal, inquiry, proposal or offer from any Person (other than Buyer person or any of its Affiliates) entity relating to the direct any (1) reorganization, dissolution or indirect dispositionrecapitalization of Seller, whether by sale, (2) merger or otherwiseconsolidation involving Seller, of all or any portion (3) sale of the Business stock of Seller, or the Purchased Assets (a “Competing Transaction”4) other than acquisitions sale of the Purchased Assets in any assets of Seller outside the Ordinary Course of Business, or Business (the transactions in the foregoing clauses are collectively referred to as a "Seller Transaction"); or
(ii) furnish any informationinformation with respect to, assist or participate in, or facilitate in any discussions other manner a Seller Transaction or negotiations, any effort or enter into attempt by any Contract, letter of intent, person or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding entity to seek a Competing Seller Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders AOL will terminate any and all discussions with any third-party regarding a Seller Transaction and will notify the Buyer immediately if any person or negotiations entity makes any proposal or offer with respect to a Seller Transaction. Seller or AOL may respond to inquiries from other prospective purchasers, but (A) only to the extent that Seller or AOL informs such prospective purchasers that Seller is under contract for sale, and (B) Seller and AOL cannot provide (and will not provide) any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential other information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetsprospective purchasers.
(c) From the date hereof through the Exclusivity Termination DateSeller and AOL represent and warrant that neither Seller, if the Seller AOL nor any of Seller's or any Stockholder receives any inquiryAOL's officers, proposaldirectors, affiliates, agents, or offer relating to a Competing representatives has entered into any executory agreements or accepted any commitments concerning any Seller Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mindspring Enterprises Inc)
Exclusivity. (a) From the date hereof until the Closing or the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders Sellers shall not, and shall not authorize or permit any of their respective officersthe Acquired Companies or any of the Affiliates, directors, officers, employees, agents, representatives or Affiliates agents of the Sellers or the Acquired Companies (collectively, the “Representatives”) to, directly or indirectly: , (i) solicitdiscuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into, whether as the proposed surviving, merged, acquiring or acquired corporation or otherwise, any transaction involving a merger, consolidation, business combination, purchase, licensing, assignment or disposition of any material amount of the assets of any of the Acquired Companies or any equity securities or other ownership interests of any of the Acquired Companies other than the transactions contemplated by this Agreement (an “Acquisition Transaction”), (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction, (iii) furnish or cause to be furnished, to any Person, any information concerning the business, operations, properties or assets of any of the Acquired Companies in connection with an Acquisition Transaction, or (iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing.
(to b) From the extent within such Person’s controldate hereof until the Closing or the earlier termination of this Agreement, the Sellers shall notify the Buyer orally and in writing promptly (but in no event later than 24 hours) permit after receipt by any of the submission Sellers or their Affiliates, including any Acquired Company or any of the Representatives thereof of any proposal, inquiry, proposal or offer from any Person (other than the Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing effect an Acquisition Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for non-public information relating theretoto any of the Acquired Companies or for access to the properties, such party will promptly, and in books or records of any event within one (1) Business Day, notify of the Acquired Companies by any Person other than the Buyer in writing for purposes of such inquiry, proposal, offer, or request, including effecting an Acquisition Transaction. Such notice shall indicate the identity of the Person making the proposal or offer, or intending to make a proposal or offer or requesting non-public information or access to the books and records of any of the Acquired Companies, the material terms of any such inquiryproposal or offer, or modification or amendment to such proposal or offer and copies of any written proposals or offers or amendments or supplements thereto. The Sellers shall keep the Buyer informed, on a current basis, of any material changes in the status and any material changes or modifications in the material terms of any such proposal, offer, indication or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Securities Purchase Agreement (Entravision Communications Corp)
Exclusivity. (a) From Except as contemplated by this Agreement, after the date hereof until the earlier of (i) the Closing Date, or (ii) Date and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with its terms, the Seller and Stockholders shall not, and Company shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: :
(i) solicit, initiate, encourage, or knowingly facilitate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or Acquisition Proposal;
(ii) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or furnish to any person any information with respect to, or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitute, or could be expected to lead to, any Acquisition Proposal; or
(iii) enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transactionagreement with respect to any Acquisition Proposal.
(b) Immediately following Without limiting the execution of this Agreement, each generality of the Seller foregoing Section 5.15(a), the Company shall, and Stockholders will terminate shall cause the Company’s Representatives to, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any person, conducted prior to the date hereof with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased AssetsAcquisition Proposal.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, As soon as practicable (and in any event within forty-eight (48) hours) the Company shall attempt to notify and advise Parent orally, and shall notify and advise Parent in writing, of any contact between the Company or any of the Company’s Representatives, on the one (1) Business Dayhand, notify Buyer in writing and any other person, on the other hand, regarding any Acquisition Proposal or any related inquiry. In fulfilling its obligations under this Section 5.15(c), the Company shall provide promptly to Parent copies of such inquiry, proposal, offer, all written correspondence or requestother written material, including material in electronic form, between the identity of the Person making Company or its Representatives and such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretothird party.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach For purposes of this Section 6.11 would cause substantial and irreparable damage to Buyer 5.15, “Acquisition Proposal” means any written offer or proposal for which money damages would be an inadequate remedy anda merger, accordinglyconsolidation, acknowledges and agrees that Buyer will be entitled to an injunctionstock exchange, specific performance business combination, reorganization, recapitalization, liquidation, dissolution or other equitable relief to prevent similar transaction involving the breach Company, any direct or indirect acquisition of such obligations (in addition to all more than 20% of the outstanding capital stock of the Company, any purchase of at least 20% of the assets of the Company, other rights and remedies to which Buyer may be entitled in respect of any such breach), without than the necessity of posting a bond or other securitytransactions contemplated by this Agreement.
Appears in 1 contract
Exclusivity. From and after the date hereof through the date which is forty-five (45) days following the date hereof, without the prior written consent of Aspec, neither Inbox, the Majority Shareholders nor any of Inbox's other officers, directors, shareholders, agents or Affiliates shall, directly or indirectly, (a) solicit, conduct discussions with or engage in negotiations with any person, other than Aspec, relating to the possible acquisition of Inbox or any of its subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (b) provide information with respect to Inbox or any of its subsidiaries to any person, other than Aspec, relating to the possible acquisition of Inbox or any of its subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (c) enter into an agreement with any person, other than Aspec, providing for the acquisition of Inbox or any of its subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (d) make or authorize any statement, recommendation or solicitation in support of any possible acquisition of Inbox or any of it subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets by any person, other than by Aspec, (e) enter into any agreement with any person, other than Aspec, providing for any extension of credit (other than trade credit in the ordinary course of business) or other debt investment in Inbox, or (f) enter into any additional agreement for the licensing or distribution of products, technology, or intellectual property of Inbox (other than in the ordinary course of business), whether now existing or hereafter created. In addition to the foregoing, if Inbox or any of its subsidiaries receives any unsolicited offer or proposal to enter negotiations relating to any of the above, Inbox shall immediately notify Aspec thereof, including information as to the identity of the offeror or the party making any such offer or proposal and the specific terms of such offer or proposal, as the case may be. From and after the date hereof until the earlier first to occur of (i) the Closing Date, of the Merger or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred Section 11 hereof, none of the Majority Shareholders will transfer or offer to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit transfer any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (Inbox Common Stock except to Aspec pursuant to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing TransactionMerger.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aspec Technology Inc)
Exclusivity. (a) From Prior to the date hereof until the earlier of (i) the Closing DateClosing, or (ii) the termination of until this Agreement pursuant to Article IX (such earlier date being referred to herein as is terminated in accordance with its terms, none of any Seller, Sellers’ Representative or the “Exclusivity Termination Date”), the Seller and Stockholders shall notCompany shall, and each such Person shall not authorize or permit any of cause the Subsidiaries and its and their respective officers, employees, directors, employeesmanagers, agents, agents and representatives or Affiliates not to, directly or indirectly: indirectly (i) solicit, initiate, encourageknowingly induce, knowingly assist or take any action with the intent to facilitate or encourage (to including by way of furnishing information) any inquiries with respect to, or the extent within such Person’s control) permit the submission of making of, any proposal, inquiry, proposal or offer (whether or not in writing, and including any proposal or offer to any Seller) from any Person (or group of Persons, other than Buyer and its Affiliates, that may constitute, or that would reasonably be expected to result in, an Alternative Transaction; (ii) engage or enter into, continue or otherwise participate in any discussions, negotiations or agreements with any Person or group of Persons, other than Buyer and its Affiliates, regarding, or intended to result in, or would reasonably be expected to result in, an Alternative Transaction; (iii) furnish any information relating to the Company or any of its Affiliates) relating , assets or businesses, or afford access to the direct assets, business, properties, books or indirect disposition, whether by sale, merger or otherwise, records of all the Company or any portion of the Business its Affiliates to any Person or the Purchased Assets (a “Competing Transaction”) group of Persons, other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessBuyer and its Affiliates, or (ii) furnish any information, participate cooperate in any discussions way with any Person or negotiationsgroups of Persons, in each such case for the purpose of contemplating, knowingly assisting, or knowingly facilitating any proposal that may constitute, or that would reasonably be expected to result in, an Alternative Transaction; or (iv) enter into an Alternative Transaction or any Contractagreement, arrangement or understanding with respect thereto, including, without limitation, any letter of intent, memorandum of understanding, agreement in principle, joint venture agreement, partnership agreement, term sheet or other understanding similar document (whether oral or written, oral, binding, non-binding) regarding, or otherwise) regarding a Competing that is intended to result in, or would reasonably be expected to result in, an Alternative Transaction.
(b) Immediately following Until the execution Closing or the earlier termination of this AgreementAgreement in accordance with its terms, each of the Company, Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
Sellers’ Representative shall promptly (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1Business Day after receipt thereof by any Seller, Sellers’ Representative, the Company, any Subsidiary or any of their respective Affiliates or representatives) Business Day, notify advise Buyer orally and in writing of such inquiry, proposal, offer, or request, any proposal of the kind described in this Section 6.9 (including the identity of the Person making such inquiry, proposal, offer, or request, proposing party and the proposed terms and details thereof), including any request for information with respect to any such proposal or any inquiry with respect to or which could result in a copy proposal of any writing (including any electronic mail) relating theretothe kind described in this Section 6.9.
(dc) Each Seller (for itself and on behalf of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, its Affiliates) acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the B▇▇▇▇’s remedies at law for any breach of such any Seller’s, the Company’s or their Affiliates’ obligations (hereunder would be inadequate, and agree and consent that, in addition to all any other rights relief available to Buyer at law or in equity, temporary and remedies to which Buyer permanent injunctive relief, including specific performance, may be entitled granted in respect of a proceeding brought to enforce any such breach), provision hereof without the necessity of proof of actual damage or the posting of a bond or other security.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sangoma Technologies Corp)
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, Neither HGHC or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit Joliet nor any of their respective officers, directors, employees, agentsstockholders, representatives or Affiliates toother agents, directly or indirectly: indirectly shall (ifor so long as Buyers shall not have breached their obligations under this Agreement): (a) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the encourage submission of any proposal, inquiry, proposal or offer from any potential investor or acquirer relating to any transaction involving any debt or equity securities of Joliet (currently outstanding 26 or to be issued) or any sale or transfer of any of the assets of Joliet other than in the ordinary course of business; (b) enter into, participate in or continue any discussions or negotiations (except with the Buyers) regarding, or furnish any information to or cooperate with any Person (other than Buyer the Buyers) with respect to, any transaction involving any debt or equity securities of Joliet (currently outstanding or to be issued) or any sale or transfer of its Affiliates) relating to the direct or indirect dispositionany assets of Joliet, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course ordinary course of Business, business; or (iic) furnish any information, participate in any discussions or negotiations, or enter into any Contractagreement (except with the Buyers) relating in any manner to any transaction involving any debt or equity securities of Joliet (currently outstanding or to be issued) or any sale or transfer of any assets of Joliet, letter other than in the ordinary course of intentbusiness; PROVIDED, or HOWEVER, that notwithstanding any other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of provision in this Agreement, each including this SECTION 4.01, a sale of HGHC or all or substantially all of the assets of HGHC or its subsidiaries in which either HGHC retains, or such purchaser assumes, all of the obligations of HGHC under this Agreement (an "HGHC Sale") is not prohibited; provided that, in the case of an assumption of this Agreement by the purchaser, the credit rating for the subordinated debt of such purchaser issued by S&P's or ▇▇▇▇▇'▇ is not less than B+ or B2, respectively. If any Seller receives, or any officer, director, stockholder, representative or agent of Seller receives and Stockholders will terminate notifies any Seller, directly or indirectly, of an offer or proposal to enter into any transaction involving any debt or equity securities of Joliet (currently outstanding or to be issued) or any sale or transfer of any assets of Joliet, other than in the ordinary course of business, HGHC shall notify Buyers by the close of business on the third following Business Day. HGHC or Joliet, as the case may be, shall, and all each shall cause its officers, directors, stockholders, agents and representatives to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement of the matters referred to in connection with a Competing Transaction this SECTION 4.01. Notwithstanding any other provision in this Agreement, including this SECTION 4.01, Joliet shall be able to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Daysell or transfer twenty (20) buildable acres of real estate described on SCHEDULE 2.11(i); in Joliet, notify Buyer in writing Illinois to either the City of such inquiryJoliet and/or the Joliet Park District, proposalwithout having any effect on the Merger Consideration; and (2) sell, offer, transfer or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy otherwise dispose of any writing (including any electronic mail) relating theretoasset of Joliet as permitted by SECTION 4.05.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger Agreement (Argosy Gaming Co)
Exclusivity. (a) From The Company agrees that between the date hereof until of this Agreement and the earlier of (i) the Closing Date, or (ii) and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders Company shall not, and shall not authorize take all action necessary to ensure that none of its Subsidiaries or permit any of their respective officers, directors, employees, agents, Affiliates or representatives or Affiliates toshall, directly or indirectly: :
(ia) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of knowingly encourage or accept any proposal, inquiry, other proposals or offer offers from any Person (other than Buyer or any of its Affiliatesi) relating to the any direct or indirect disposition, whether by sale, merger acquisition or otherwise, purchase of all or any portion of the Business capital stock or other equity or ownership interest of the Purchased Assets (a “Competing Transaction”) Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries, other than acquisitions of the Purchased Assets inventory to be sold in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, or (ii) furnish any information, participate in any discussions or negotiations, or to enter into any Contractmerger, letter of intent, consolidation or other understanding business combination relating to the Company or any of its Subsidiaries or (whether writteniii) to enter into a recapitalization, oral, binding, non-binding, reorganization or otherwise) regarding a Competing Transaction.any other extraordinary business transaction involving or otherwise relating to the Company or any of its Subsidiaries (the “Prohibited Transactions”); or
(b) Immediately following the execution of this Agreementknowingly participate in any discussions, each conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise knowingly 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 Seller foregoing. The Company immediately shall cease and Stockholders will terminate cause to be terminated all existing discussions, conversations, negotiations and other communications with any and all discussions or negotiations Persons conducted heretofore with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, of the Seller, the Business or the Purchased Assetsforegoing.
(c) From The Company shall notify the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will Buyer promptly, and but in any event within one (1) Business Day24 hours, notify Buyer orally and in writing of such inquiry, if any proposal, offer, or requestinquiry or other contact with any Person (other than Buyer, including Merger Sub or their Affiliates) with respect to a Prohibited Transaction, is made. Any such notice to the Buyer shall indicate in reasonable detail the identity of the Person making such inquiry, proposal, offer, inquiry or request, other contact and the material terms and details thereofconditions of such proposal, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andoffer, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance inquiry or other equitable relief to prevent the breach contact. The Company and each of such obligations (in addition to all other rights and remedies its Subsidiaries shall not, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which Buyer may be entitled in respect the Company or any of any such breach)its Subsidiaries is a party, without the necessity prior written consent of posting a bond or other securitythe Buyer.
Appears in 1 contract
Sources: Merger Agreement (Infor, Inc.)
Exclusivity. (a) From the date hereof of this Agreement until the Closing (or until earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”Agreement), the Seller and Stockholders shall not, not (and shall cause its Representatives not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to), directly or indirectly: , (i) solicit, initiate, encourageseek, facilitate knowingly encourage or facilitate, or induce the making, submission or announcement by any Person of any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Alternative Proposal (as defined below), (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these exclusivity provisions) or negotiations regarding, or deliver or make available to any Person any information with respect to, any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Alternative Proposal, (iii) agree to, accept or approve any Alternative Proposal, or (iv) enter into any letter of intent or any other contract contemplating or otherwise relating to the extent within such Person’s control) permit the submission any Alternative Proposal. “Alternative Proposal” means any agreement, offer, proposal or indication of any proposal, inquiryinterest relating to, or offer from involving: (A) a transaction or series of transactions whereby any Person (other than Buyer or any of its AffiliatesBuyer) relating proposes to acquire the direct or indirect disposition, EFK Facility (whether by salemerger, merger reorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, license, disposition or otherwisesale of assets); (B) the issuance, grant, disposition or acquisition of all any security, instrument, obligation, right of first refusal, right of first offer, pre-emptive right or any portion of the Business similar obligation that is or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessmay become convertible into, exchangeable or (ii) furnish any information, participate in any discussions exercisable for or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to the EFK Facility; or (C) any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction other transaction the consummation of which would reasonably be expected to return all confidential information heretofore furnished to such Person by or on behalf frustrate the purpose of, materially impede or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or prevent any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoTransactions.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Each of the date hereof Sellers and Owners agrees that until such time as this Agreement has terminated in accordance with Article 9, none of Sellers or the earlier of (i) the Closing DateOwners shall, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)shall permit its respective shareholders, the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employeesadvisors, agents, representatives agents or Affiliates to: (a) encourage, initiate, solicit, entertain, negotiate, accept or discuss, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, proposal or offer from any Person (an “Acquisition Proposal”) by a third party (other than Buyer or any of its Affiliatesother person Buyer designates) relating to regarding (i) the direct or indirect disposition, whether by sale, merger or otherwise, sale of all or any portion material assets of the Business or the Purchased Assets any Company (a “Competing Transaction”) other than acquisitions the sale of the Purchased Assets inventory in the Ordinary Course of Business, Business consistent with past practice) or (ii) furnish any informationsale of capital stock, participate merger, consolidation, public offering, recapitalization or other similar transaction involving a Company (the actions referred to in any discussions or negotiationsclauses (i) and (ii), each a “Third Party Acquisition”), or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following provide any non-public financial or other confidential or proprietary information regarding any Company and/or Buyer (including this Agreement and any other materials containing Buyer’s or its Affiliates’ proposal and any other financial information, projections or proposals regarding the execution Business) to any Person (other than to Buyer, Parent and/or their representatives and agents and any other person Buyer designates), or take any other action to facilitate any inquiries or the making of this Agreementany proposal that constitutes, each or would reasonably be expected to result in, a Third Party Acquisition. Each of the Seller Sellers and Stockholders will terminate Owners agree to immediately notify Buyer and Parent if it or any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From of its representatives receives after the date hereof through the Exclusivity Termination Dateany indications of interest, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request requests for information relating thereto, such party will promptlyor offers in respect of an Acquisition Proposal, and will communicate to Buyer and Parent in reasonable detail the terms of any event within one such indication, request or proposal (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or requestthird party), and the terms will provide Buyer and details thereof, including a copy Parent with copies of any writing (including any electronic mail) all written communications relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach)indication, without the necessity of posting a bond request or other securityproposal.
Appears in 1 contract
Exclusivity. (a) From and after the date hereof until the earlier of (i) the Closing Datehereof, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall cause its Affiliates not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: , (a) initiate, solicit, facilitate, encourage, discuss, negotiate or accept any inquiries, proposals or offers with respect to (i) solicitthe acquisition, initiatein a single transaction or a series of related transactions, encourageof any of the outstanding shares of any class or series of equity securities or debt securities of the Company or any of its Subsidiaries or any interests therein, facilitate (ii) the acquisition (or 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 assets and properties of the Company or any of its Subsidiaries or interests therein (on a consolidated basis), (iii) the merger, consolidation or combination of the Company or any of its Subsidiaries or (iv) the recapitalization, restructuring, reorganization, liquidation, dissolution or other extraordinary transaction with respect to the extent within such Person’s controlCompany or any of its Subsidiaries (each of the foregoing in clauses (i) permit the submission of any proposalthrough (iv), inquiryan “Acquisition Transaction”), or offer from (b) enter into any Person (contract or agreement concerning or relating to an Acquisition Transaction, in each case with a party other than Buyer or any an Affiliate of its Affiliates) relating 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 direct Closing, or indirect dispositionobtains information that such an inquiry, whether by saleproposal or offer is likely to be made, merger or otherwiseSeller shall provide Buyer with immediate notice thereof, of all or any portion which notice shall include the terms of, and the identity of the Business person or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businesspersons making, such inquiry, proposal or (ii) furnish any informationoffer. Seller shall, participate in any discussions or negotiationsand shall cause its Affiliates to, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will immediately terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or third party with respect to, or that could reasonably be expected to lead to, an Acquisition Transaction. Prior to the SellerClosing, Seller shall not transfer, dispose of or put an Encumbrance on the Business or equity securities of the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller Company or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoits Subsidiaries.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Stock Purchase Agreement (Patterson Companies, Inc.)
Exclusivity. (a) From The Company and the date hereof Stockholders’ Representative agree that from the Execution Date until the earlier of (i) the Closing Date, or (ii) and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as Section 13.1, neither the “Exclusivity Termination Date”), Company nor the Seller and Stockholders shall notStockholders’ Representative shall, and each shall not authorize take all commercially reasonable actions necessary to ensure that none of the Acquired Companies or permit any of their Affiliates or any of their respective officers, managers, directors, employees, agents, representatives financial advisors or Affiliates toother representatives, directly or indirectly: :
(i) solicit, initiate, encourageconsider, facilitate encourage or (to the extent within such Person’s control) permit the submission of accept any proposal, inquiry, other proposals or offer offers from any Person (other than Buyer or any of its Affiliatesthe Purchaser, Merger Sub 1, Merger Sub 2 and their respective Agents) relating to the any direct or indirect dispositionacquisition or purchase of all or a significant portion of the assets of the Business or Equity Interests of the Company (or any other Acquired Company), whether effected by salesale of assets, sale of stock, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets sales made in the Ordinary Course of Business, or ; or
(ii) furnish any information, participate in any discussions discussions, conversations, negotiations or negotiationsother communications regarding, or enter into furnish to any Contract, letter of intentother 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 understanding Person to seek to do any of the foregoing. The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing (whether writtenother than with respect to the Stockholders’ Representative, oral, binding, non-binding, or otherwise) regarding a Competing Transactionthe Purchaser and Merger Sub 1 in connection with communications related to the Acquisition).
(b) Immediately following The Company shall notify the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will Purchaser promptly, and but in any event within one (1) two Business DayDays, notify Buyer in writing of such inquiry, proposal, offerif any bona fide proposal or offer with respect to a transaction described in this Section 7.9, or requestany inquiry or other contact with any Person with respect thereto, including is made. Any such notice to Parent shall indicate in reasonable detail the identity of the Person making such inquiry, proposal, offer, inquiry or request, other contact and the terms and details thereofconditions of such proposal, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andoffer, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance inquiry or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies contact. The Company shall not release any Person from, or waive any provision of, any confidentiality agreement to which Buyer may be entitled in respect of any such breach)the Company is a party, without the necessity prior written consent of posting a bond or other securityPurchaser.
Appears in 1 contract
Exclusivity. (a) From During the period commencing immediately on the date hereof until of execution of this letter agreement and ending on the earlier of the date of execution of the Definitive Agreement and 5:00 p.m. Houston time, October 10, 2008 (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”), none of the Seller and Stockholders shall not, and shall not authorize Company or permit any of their respective its subsidiaries, affiliates, officers, directors, employees, agentsattorneys, accountants, investment bankers and other agents or representatives or Affiliates to(collectively, “Representatives”) will, directly or indirectly: (i) solicit, initiatesolicit or encourage any offers, encourage, facilitate bids or (to the extent within such Person’s control) permit the submission indications of any proposal, inquiryinterest, or offer from initiate or engage in negotiations with any Person (person other than Buyer Purchaser, in any such case with respect to any direct or indirect acquisition or purchase by any person or entity from the Company or any of its Affiliates) relating to material subsidiaries of any debt or equity securities of the direct or indirect disposition, whether by sale, merger or otherwise, of all Company or any portion of its material subsidiaries that would replace or obviate the need for the issuance of the Business Preferred Shares; provided, however, that the foregoing shall not (i) apply to (x) indebtedness in the ordinary course of business consistent with past practice or (y) the Purchased Assets indebtedness contemplated in the Commitment Letter with GSLP I Offshore Holdings Fund A, L.P., GSLP I Offshore Holdings Fund B, L.P., GSLP I Offshore Holdings Fund C, L.P. and GSLP I Onshore Holdings Fund, L.L.C. (each, a “Competing TransactionGSLP Fund” and, collectively, the “GSLP Funds”) other than acquisitions ), executed as of the Purchased Assets in the Ordinary Course of Business, date hereof or (ii) furnish be deemed to restrict the ability of the Company or any informationof its subsidiaries to solicit any offer, participate bid or indication of interest with respect to, or to initiate or engage in any discussions or negotiations, negotiations or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate agreement with any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or person with respect to, any merger, consolidation or sale of all or substantially all of the Seller, assets of the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller Company or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transactionof its subsidiaries, or any request for information relating theretorecapitalization, such party will promptlyliquidation, and in dissolution or similar transaction involving the Company or any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details subsidiary thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Beginning on the date hereof until of this letter agreement and through the earlier earliest of (i) the Closing DateExclusivity Period End Date (as defined below), or (ii) such time as Counterparty advises Iconix in writing (including via e-mail) that Counterparty is no longer proceeding with respect to the termination Transaction for the consideration, or otherwise on substantially the material economic and governance terms, specified in the Term Sheet, (iii) such time as Counterparty fails to, within 48 hours of this Agreement pursuant receipt from Iconix of a written request to Article IX confirm in writing (including via e-mail) that Counterparty still intends to proceed with the Transaction for the consideration, or otherwise on substantially the material economic and governance terms, specified in the Term Sheet, so confirm to Iconix in writing (provided that such request shall not be made more than two (2) times), and (iv) the entering into by Iconix and Counterparty or one or more of their respective affiliates of a definitive agreement providing for the consummation of the Transaction (such earlier date being referred to herein as earliest date, the “Exclusivity Termination Date”), the Seller and Stockholders Iconix shall not, and shall not authorize or permit any of cause its controlled affiliates and its and their respective officersdirectors and officers (or equivalents) not to, directorsand shall not permit its employees, consultants, investment bankers, attorneys, advisors and other representatives (such affiliates, directors or officers (or equivalents), employees, agentsconsultants, investment bankers, attorneys, advisors and other representatives or Affiliates acting on its behalf, collectively, the “Iconix Representatives”) to, in each case other than with Counterparty, any of its affiliates or members or any of its or their respective representatives, (x) (A) engage in any discussions or negotiations with respect to, or (B) directly or indirectly: (i) indirectly solicit, initiate, encouragenegotiate or otherwise discuss or knowingly encourage or knowingly facilitate the making of, facilitate in each case of (A) or (to the extent within such Person’s control) permit the submission of B), any proposal, inquiry, or offer from any Person Alternative Proposal (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessas defined below), or (iiy) furnish any information, participate in any discussions or negotiations, or enter into any Contractagreement with respect to an Alternative Proposal, letter of intentand Iconix shall cause its controlled affiliates to, or other understanding (whether writtenand cause its controlled affiliates to instruct their respective Iconix Representatives to, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate cease any and all discussions or negotiations with respect to any Competing Transaction Alternative Proposal other than with Counterparty, any of its affiliates or members or any of its or their respective representatives. Iconix will also provide written notice to Counterparty promptly following receipt of any Alternative Proposal. Notwithstanding the foregoing, Counterparty acknowledges that Iconix and request its representatives may engage in discussions and negotiations with current or prospective (I) holders of Iconix’s 5.75% Convertible Notes due 2023; and (II) lenders under Iconix’s existing senior secured term loan facility (collectively, the “Lenders”), in each Person case regarding refinancing, redemption or repurchase transactions, and nothing in this letter agreement shall be construed to preclude Iconix and its representatives from engaging in any such discussions and negotiations or, upon obtaining prior written consent from Counterparty (not to be unreasonably conditioned, withheld or delayed), entering into or effecting any such refinancing, redemption or repurchase transactions; provided that has heretofore executed a confidentiality agreement in connection Iconix shall keep Counterparty reasonably apprised of any material discussions with a Competing Transaction to return all confidential information heretofore furnished such holders or material developments with respect to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetsfinancing arrangements.
(cb) From the date hereof through the Exclusivity Termination DateFor purposes of this letter agreement, if the Seller an “Alternative Proposal” means any agreement, offer or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transactionproposal for, or any request indication of interest in, any transaction involving (i) an acquisition by one or more third parties of debt or equity interests of Iconix or any of its direct or indirect subsidiaries (or any instruments or securities exercisable, convertible, redeemable or exchangeable for information relating theretoequity interests of Iconix or any of its direct or indirect subsidiaries), such party will promptly(ii) a merger, and in any event within one (1) Business Dayconsolidation, notify Buyer in writing of such inquiryshare exchange, proposal, tender offer, business combination, reorganization, recapitalization, refinancing, liquidation, dissolution or request, including the identity of the Person making such inquiry, proposal, offerother similar transaction involving Iconix, or request, and the terms and details thereof, including (iii) a copy sale of any writing (including any electronic mail) relating theretoall or substantially all of Iconix’s assets.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof of this Agreement until the earlier of either (ia) the Closing DateClosing, or (iib) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither the “Exclusivity Termination Date”), Sellers nor the Seller and Stockholders shall notCompany will, and shall not authorize or permit any of the Company and Sellers will cause their respective officers, directors, employees, agents, representatives or Affiliates Subsidiaries and Representatives not to, directly or indirectly: (i) solicit, initiate, facilitate, or encourage any inquiries, discussions, or proposals from, negotiate with, or in any manner encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposaldiscuss, inquiryaccept, or offer consider any proposal from any Person (relating to any direct or indirect sale or other than Buyer or disposition of the Shares, the Company, any of its AffiliatesSubsidiaries, the Business, the Assets, or any other transaction (including any joint venture or other contractual arrangement) relating that would reasonably be expected to impede, interfere with, prevent, materially delay, or limit the economic or other benefit to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion Purchaser of the Business or the Purchased Assets transactions contemplated under this Agreement (a any such transaction, an “Competing Alternative Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, ); or (ii) furnish or provide any information, participate in any discussions or negotiationsConfidential Information regarding, or enter into afford any Contractaccess to, letter of intentthe properties, books, or Records of the Company or any of its Subsidiaries to any other understanding (whether written, oral, binding, non-bindingPerson for the purpose of making or evaluating, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreementdetermining whether to make or pursue, each of the Seller and Stockholders will terminate any and all discussions inquiries or negotiations proposals with respect to any Competing Alternative Transaction. The Sellers and the Company hereby represent and warrant that each has terminated any prior inquiries, discussions, proposals, or related negotiations regarding an Alternative Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf the Sellers’ Representative will promptly advise the Purchaser of, and communicate to the Purchaser all material terms of, any inquiry or with respect to, the Seller, the Business or the Purchased Assets.
proposal (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, subsequent further inquiry or modified proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, ) and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making any such inquiryinquiry or proposal (or on behalf of whom such inquiry or proposal was made) that the Sellers, proposal, offerthe Company, or request, and their respective Representatives may receive or of which they may become aware following the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretodate hereof.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal Technical Institute Inc)
Exclusivity. Within the Exclusivity Period, (a) From each Consortium Member shall work exclusively with the date hereof until other Consortium Members to implement the earlier of (i) the Closing Date, or (ii) the termination of Transaction in accordance with this Agreement pursuant and shall not discuss with any third party regarding any transaction relating to Article IX the Company or the Securities; -9- (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders b) each Consortium Member shall not, and shall cause its/his/her Affiliates not authorize or permit any to, without the prior knowledge and written consent of their respective officers, directors, employees, agents, representatives or Affiliates tothe other Consortium Members, directly or indirectly, either alone or with any of its/his/her Affiliates: (i) solicitmake a Competing Proposal or join with, initiateor invite, encourage, facilitate or (any other Person to be involved in the extent within such Person’s control) permit the submission making of any proposal, inquiry, Competing Proposal or offer from provide any information to any other Person (other than Buyer with a view to pursue or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (evaluate a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or Proposal; (ii) furnish finance or offer to finance any informationCompeting Proposal, participate including by offering any equity or debt financing in support of any discussions Competing Proposal; (iii) sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale of or negotiationsotherwise dispose of, any Securities except as contemplated under this Agreement and the Documentation, or enter into any Contractagreement, letter arrangement or understanding with respect thereto; (iv) enter into any agreement, arrangement or understanding with respect to a limitation on voting rights of intentthe Securities except as contemplated under this Agreement and the Documentation; (v) deposit any Securities into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or other voting trust with respect to any Securities except as contemplated under this Agreement and the Documentation or to expressly support the Transaction; (vi) take any action that would have the effect of preventing, disabling or delaying such Consortium Member from performing its/his/her obligations under this Agreement; (vii) enter into any written or oral agreement, arrangement or understanding (whether written, oral, binding, non-bindinglegally binding or not) regarding, or otherwisedo or omit to do, anything that is inconsistent with the Transaction as contemplated under this Agreement; or (viii) regarding a Competing Transaction.
(b) Immediately following aid, abet, counsel or induce any other Person in doing any of the execution things mentioned in the foregoing provisions of this Agreement, Section 9.1(b); and (c) each Consortium Member shall notify the other Consortium Members immediately if it/he/she or any of the Seller and Stockholders will terminate its/his/her Affiliates or Representatives receives any and all discussions approach or negotiations communication with respect to any Competing Transaction Proposal and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction shall disclose to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including other Consortium Members the identity of the Person making such inquiry, proposal, offer, or request, any other Persons involved and the terms nature and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each content of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance approach or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitycommunication.
Appears in 1 contract
Sources: Consortium Agreement
Exclusivity. (a) From and after the date hereof until the Closing Date or the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Section 14.01, the Seller Parties and Stockholders the Company shall not, and shall not authorize or permit any of cause their respective officersAffiliates, directors, officers, employees, agentsinvestment bankers and other representatives not to, representatives directly or Affiliates indirectly (a) solicit, initiate, or continue any discussions or negotiations with, authorize, recommend, propose, assist, facilitate, knowingly encourage, or take any action to, directly or indirectly: (i) solicit, knowingly encourage, initiate, encouragesolicit or engage in discussions or negotiations with, facilitate or provide any information to any Person, other than the Buyer Parties and their Affiliates, concerning any Acquisition Proposal, (b) provide or continue to provide information or documentation (or access to such documentation) with respect to the extent within such Group Companies to any Person’s control) permit , other than the submission of any proposalBuyer Parties and their Affiliates and their respective designated representatives, inquiryrelating to, or offer from in connection with, an Acquisition Proposal, (c) commence, continue or renew any Person (other than Buyer due diligence investigation regarding continue or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, otherwise knowingly participate in any discussions or negotiationsregarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential any information heretofore furnished to such Person by or on behalf of, or with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Acquisition Proposal, or (d) enter into any agreement with any Person, other than the SellerBuyer Parties and their Affiliates, the Business regarding or the Purchased Assets.
(c) effecting an Acquisition Proposal. From and after the date hereof through until the Exclusivity Termination DateClosing Date or the earlier termination of this Agreement pursuant to Section 14.01, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating Company agrees to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing reasonably promptly (and in no event later than twenty-four (24) hours) following receipt of any unsolicited proposals or inquiries regarding an Acquisition Proposal and provide information regarding the terms of such inquiry, proposal, offer, or request, proposal (including the identity of the Person making such inquiry, submitting the proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto).
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From During the period from the date hereof until of this Agreement to the earlier of (ia) the Closing Date, or and (iib) the termination of date this Agreement is validly terminated pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Section 10.1, the Seller and Stockholders Company shall not, and shall not authorize or permit permit, any of their respective officersits Representatives, directors, employees, agents, representatives Subsidiaries or Affiliates to, directly or indirectly: , to (ia) solicit, initiate, encourageencourage or solicit any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, facilitate (b) participate in negotiations or (to the extent within such Person’s control) permit the submission of any proposal, inquirydiscussions with, or offer from provide any information or data to, any Person (other than Buyer Parent, MergerCo or any of its Affiliatestheir respective Affiliates or Representatives) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessAcquisition Proposal, or (iic) furnish any informationapprove, participate in any discussions or negotiationsauthorize, or enter into any Contractcontract or agreement contemplating or otherwise relating to, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately any Acquisition Proposal. Promptly following the execution of this Agreement, the Company shall, and shall instruct each of the Seller its Affiliates and Stockholders will terminate Subsidiaries, and its and their respective Representatives to, (x) immediately cease any and all existing activities, discussions or negotiations with any Person with respect to any Competing Transaction Acquisition Proposal, and (y) request each Person that has heretofore executed a confidentiality agreement the return or destruction of any due diligence materials provided to any Persons (other than Parent, MergerCo and their Representatives) in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, any Acquisition Proposal. If the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder Company receives any an inquiry, proposal, proposal or offer relating for an Acquisition Proposal, then the Company promptly (and no later than twelve (12) hours of receipt) shall notify the Parent of the receipt of such an inquiry, proposal or written offer, shall then provide to a Competing Transaction, the Parent copies of all written or any request for information relating thereto, such party will promptly, electronically delivered materials related thereto and shall refrain from contacting or negotiating with the offeror or otherwise pursuing said offer in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretomanner.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof The Parent agrees that, until the earlier to occur of the Closing Date and such time as this Agreement has terminated in accordance with Article VII, neither any Group Company nor the Parent shall, or shall permit, as applicable, its equityholders, employees, officers, directors, advisors, agents or Affiliates to: (i) encourage, initiate, solicit, entertain, negotiate, accept or discuss, directly or indirectly, any proposal or offer (a “Proposal”) by a Third Party (other than the Closing DatePurchaser or any other person the Purchaser designates) regarding (A) the sale of all or any material assets of any Group Company (other than the sale of inventory in the Ordinary Course) or (B) any sale of equity or debt securities, merger, consolidation, public offering, recapitalization, refinancing or other similar transaction involving any Group Company (the actions referred to in clauses (A) and (B) above, each a “Competing Transaction”), or (ii) provide any non-public financial or other confidential or proprietary information regarding any Group Company (including any materials containing the termination of this Agreement pursuant Purchaser’s or its Affiliates’ proposal and any other financial information, projections or proposals regarding any Group Company) to Article IX any Person (such earlier date being referred other than to herein as the “Exclusivity Termination Date”Purchaser or its representatives and agents and any other Person the Purchaser designates), or take any other action to facilitate any inquiries or the Seller making of any proposal that constitutes, or could reasonably be expected to result in, a Competing Transaction. Each of the Group Companies and Stockholders shall not, the Parent and shall not authorize or permit any of their respective officers, directors, members, employees, agentsagents or advisors shall immediately cease and cause to be terminated any previously undertaken or ongoing activities, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction. Furthermore, the Parent shall immediately notify the Purchaser if they or any request of their or any Group Company’s officers, directors, members, employees, agents or advisors receives after the date hereof any indications of interest, requests for information relating theretoor offers in respect of a Proposal, and such party will promptlyshall communicate to the Purchaser in reasonable detail the terms of any such indication, and in any event within one request or proposal (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or requestThird Party), and provide the terms and details thereof, including a copy Purchaser with copies of any writing (including any electronic mail) all written communications relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach)indication, without the necessity of posting a bond request or other securityproposal.
Appears in 1 contract
Sources: Share Subscription Agreement (Qihoo 360 Technology Co LTD)
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with its terms, the Seller Sellers, the Company and Stockholders the Blocker shall not, and shall not authorize or permit any of their respective officers, Affiliates or any of their or their Affiliates’ directors, employeesmanagers, agentsofficers or employees to, representatives or Affiliates and shall direct their respective Representatives not to, directly or indirectly: , (ia) solicit, initiate, encourage, solicit or knowingly facilitate or (to encourage any inquiries or the extent within such Person’s control) permit the submission making of any proposal, inquiry, proposal or offer from any Person (other than Buyer or any group of its Affiliates) relating Persons that may constitute, or would reasonably be expected to lead to, the direct or indirect disposition, whether by sale, merger or otherwise, acquisition of all or any portion significant part of the Business equity or the Purchased Assets assets of the Company or any Company Subsidiary, whether by merger, purchase of equity interests, issuance of equity interests, purchase of assets, tender offer, loan or otherwise (a each, an “Competing Alternative Transaction”), (b) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessengage in, enter into, continue or (ii) furnish any information, otherwise participate in any discussions or negotiationsnegotiations (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 provide any non-public information or data concerning, the Blocker or the Company Group to any Person 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 (c) approve, endorse, recommend or enter into any Contractacquisition agreement, purchase agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or other understanding (whether written, oral, binding, non-bindingagreement in principle, or otherwise) regarding a Competing Transaction.
any other agreement relating to an Alternative Transaction (b) other than with Buyer and its Affiliates and Representatives). Immediately following the upon execution of this Agreement, each of (i) the Seller Sellers, Blocker and Stockholders will the Company shall, and shall direct their Representatives to, terminate any and all existing discussions or negotiations with respect to any Competing Person other than Buyer and its Affiliates and Representatives regarding an Acquisition Transaction and (ii) the Company shall promptly request that each Person that to which the Company has heretofore executed a confidentiality agreement provided confidential information relating to the Company and the Company Subsidiaries and has afforded access to, and engaged in discussions with, in connection with a Competing proposed Alternative Transaction to (other than Buyer and its Affiliates and Representatives), promptly return all confidential or destroy any such information heretofore furnished to (except for any such access that does not relate to, and was not provided in connection with discussions concerning, a potential Alternative Transaction) in accordance with the terms of the confidentiality agreement such Person by or entered into with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoCompany.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof of this Agreement until the earlier to occur of (i) the Closing Date, or (ii) the termination of such time as this Agreement is terminated pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Section 7.3, the Seller and Stockholders Parties shall not, and shall not authorize or permit any of their respective cause the directors, members, managers, officers, directors, employees, agents, representatives or Affiliates and agents of the Seller and the Paragon Companies not to, directly or indirectly: , (i) solicit, initiate, encourageencourage or entertain any inquiries or proposals from, facilitate discuss or (to negotiate with, or provide any non-public information to, or consider the extent within such Person’s control) permit the submission merits of any proposalinquiries or proposals from, inquiry, or offer from any Person (other than Buyer or any of Purchaser and its Affiliatesagents) relating to any merger, consolidation, business combination or similar transaction involving the direct or indirect disposition, whether by sale, merger or otherwise, of all Seller or any portion Paragon Company, or the sale of the Business business or the Purchased Assets (a “Competing Transaction”) other than acquisitions assets of the Purchased Assets Seller or any Paragon Company (excluding the sale of Inventory in the Ordinary Course of Business), or the sale of the Capital Stock or any equity interest in any of the other Paragon Companies (an “Acquisition Proposal”), (ii) furnish any information, knowingly hold or participate in any negotiations or discussions or negotiations, or enter into any Contract, letter of intentagreements with any Person concerning an Acquisition Proposal; or (iii) knowingly deliver or make available to any Person any non-public information with respect to, or take any other understanding (whether writtenaction regarding, oralany inquiry, bindingexpression of interest, non-bindingproposal or offer that constitutes an Acquisition Proposal. The Seller will cease, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreementand will cause its Subsidiaries to cease, each of the Seller and Stockholders will terminate instruct, and will cause its Subsidiaries to instruct their respective Representatives to cease, and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date hereof with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased AssetsAcquisition Proposal.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Exclusivity. (a) From Each Seller agrees that between the date hereof until of this Agreement and the earlier of (i) the Closing Date, or (ii) and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders Sellers shall not, and shall not authorize take all action necessary to ensure that none of the Sellers, the Companies or permit any of their respective Affiliates, officers, directors, employees, agents, representatives or Affiliates todirectors employees and agents shall, directly or indirectly: (i) solicit, initiate, encourageconsider, facilitate encourage or (to the extent within such Person’s control) permit the submission of accept any proposal, inquiry, other proposals or offer offers from any Person (other than Buyer or any of its AffiliatesA) relating to the any direct or indirect disposition, whether by sale, merger acquisition or otherwise, purchase of all or any portion of the Business capital stock or other equity or ownership interest of the Companies or their Subsidiaries or the Purchased Assets (a “Competing Transaction”) assets of the Companies or their Subsidiaries, other than acquisitions of the Purchased Assets inventory to be sold in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (B) to enter into any merger, consolidation or other business combination relating to the Companies or their Subsidiaries or (C) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Companies or their Subsidiaries; or (ii) furnish any information, participate in any discussions discussions, conversations, negotiations or negotiationsother communications regarding, or enter into furnish to any Contract, letter of intentother 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 understanding (whether writtenPerson to seek to do any of the foregoing. The Sellers immediately shall cease and cause to be terminated all existing discussions, oralconversations, binding, non-binding, or otherwise) regarding a Competing Transactionnegotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing.
(b) Immediately following The Sellers’ Representative shall notify the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will Buyer promptly, and but in any event within one twenty-four (124) Business Dayhours, notify Buyer orally and in writing of if any such inquiry, proposal, proposal or offer, or requestany inquiry or other contact with any Person with respect thereto, including is made. Any such notice to the Buyer shall indicate in reasonable detail the identity of the Person making such inquiry, proposal, offer, inquiry or request, other contact and the terms and details thereofconditions of such proposal, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andoffer, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance inquiry or other equitable relief to prevent contact. The Sellers shall not, and shall cause the breach of such obligations (in addition to all other rights Companies and remedies their respective Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality agreement to which Buyer may be entitled in respect any Seller, Company or Subsidiary of any such breach)a Company is a party, without the necessity prior written consent of posting a bond or other securitythe Buyer.
Appears in 1 contract
Exclusivity. (a) From Prior to the date hereof until the earlier of (i) the Closing DateClosing, or (ii) the termination of until this Agreement pursuant to Article IX (such earlier date being referred to herein as is terminated in accordance with its terms, neither Seller nor the “Exclusivity Termination Date”), the Seller and Stockholders shall notCompany shall, and each such Person shall not authorize or permit any of cause its and their respective shareholders, members, officers, employees, directors, employeesmanagers, agents, agents and representatives or Affiliates not to, directly or indirectly: indirectly (i) solicit, initiate, encourageknowingly induce, knowingly assist or take any action with the intent to facilitate or encourage (to including by way of furnishing information) any inquiries with respect to, or the extent within such Person’s control) permit the submission of making of, any proposal, inquiry, proposal or offer (whether or not in writing, and including any proposal or offer to Seller) from any Person (or group of Persons, other than Buyer Purchaser and its Affiliates, that may constitute, or that would reasonably be expected to lead to, an Alternative Transaction; (ii) engage or enter into, continue or otherwise participate in any discussions, negotiations or agreements with any Person or group of Persons, other than Purchaser and its Affiliates, regarding, or intended to result in, or would reasonably be expected to lead to, an Alternative Transaction; (iii) furnish any information relating to the Company or any of its Affiliates) relating , assets or businesses, or afford access to the direct assets, business, properties, books or indirect disposition, whether by sale, merger or otherwise, records of all the Company or any portion of the Business its Affiliates to any Person or the Purchased Assets (a “Competing Transaction”) group of Persons, other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessPurchaser and its Affiliates, or (ii) furnish any information, participate cooperate in any discussions way with any Person or negotiationsgroups of Persons, in each such case for the purpose of contemplating, knowingly assisting, or knowingly facilitating any proposal that may constitute, or that would reasonably be expected to lead to, an Alternative Transaction; or (iv) enter into an Alternative Transaction or any Contractagreement, arrangement or understanding with respect thereto, including, without limitation, any letter of intent, memorandum of understanding, agreement in principle, joint venture agreement, partnership agreement, term sheet or other understanding similar document (whether oral or written, oral, binding, non-binding) regarding, or otherwise) regarding a Competing that is intended to result in, or would reasonably be expected to lead to, an Alternative Transaction.
(b) Immediately following Until the execution Closing or the earlier termination of this Agreementhis Agreement in accordance with its terms, each the Company, Seller shall promptly (and in any event within three Business Days after receipt thereof by Seller, the Company or any of their respective Affiliates or representatives) advise Purchaser orally and in writing of any proposal of the Seller kind described in this Section 7.12 (including the identity of the proposing party and Stockholders will terminate the proposed terms thereof), any and all discussions or negotiations request for information with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by proposal or on behalf of, or any inquiry with respect to, to or which could result in a proposal of the Seller, the Business or the Purchased Assetskind described in this Section 7.12.
(c) From the date hereof through the Exclusivity Termination DateIn addition to any other remedy that may be available to Purchaser at law, if the in equity or otherwise, Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will it shall be entitled liable to an injunction, specific performance or other equitable relief to prevent the Purchaser for any breach of such the obligations set forth in this Section 7.12 by any of its Affiliates, directors, officers, employees, securityholders, agents, subsidiaries, representatives or members (including those not party hereto). Seller (for itself and on behalf of its Affiliates) acknowledges and agrees that Purchaser’s remedies at law for any breach of Seller’s, the Company’s or their Affiliates’ obligations hereunder would be inadequate, and agree and consent that, in addition to all any other rights relief available to Purchaser at law or in equity, temporary and remedies to which Buyer permanent injunctive relief, including specific performance, may be entitled granted in respect of a proceeding brought to enforce any such breach), provision hereof without the necessity of proof of actual damage or the posting of a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof Effective Date, until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with Section 9.1, the Seller and Stockholders Company shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: , (i) solicit, initiate, encourage, initiate or take any action to facilitate or (to encourage any inquiries or the extent within such Person’s control) permit the making, submission of or announcement of, any proposal, inquiry, proposal or offer from any Person (or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or could reasonably be expected to lead to, a Competing Transaction; (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual data room) any information relating to any OppFi Company or any of its assets or businesses, or afford access to the assets, business, properties, books or records of any OppFi Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that could otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so; provided that none of the foregoing restrictions shall prohibit any OppFi Company from taking the actions permitted by the exceptions set forth in Section 5.1 of this Agreement or the related sections of the Company’s Disclosure Letter, and any such action shall not be deemed a violation of this Section 5.17(a).
(b) From the Effective Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 9.1, the Sponsor and the Buyer shall not directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Company (and their respective representatives, acting in their capacity as such) (an “Alternative Target”) that may constitute or could reasonably be expected to lead to, a Buyer Competing Transaction, (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Alternative Target regarding a Buyer Competing Transaction; (iii) furnish (including through any virtual data room) any non-public information relating to Buyer or any of its Affiliatesassets or businesses, or afford access to the assets, business, properties, books or records of Buyer to an Alternative Target, in all cases for the purpose of assisting with or facilitating, or that could otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (iv) approve, endorse or recommend any Buyer Competing Transaction; or (v) enter into a Buyer Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Buyer Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction or publicly announce an intention to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetsdo so.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Business Combination Agreement (FG New America Acquisition Corp.)
Exclusivity. Unless and until this Agreement is terminated in accordance with Article X (a) From Termination; Effect of Termination), each Seller, Voyage Holdings and VMG Blocker agrees that Buyer shall have the exclusive right to consummate the transactions contemplated by this Agreement or any other similar transaction with the Sellers, Voyage Holdings and VMG Blocker for the period commencing on the date hereof and continuing until the earlier of (i) the Closing Date, consummation of the transactions contemplated by this Agreement or (ii) the termination of this Agreement pursuant to in accordance with Article IX X (such earlier date being referred to herein as Termination; Effect of Termination) (the “Exclusivity Termination DatePeriod”). During the Exclusivity Period, the Seller each Seller, Voyage Holdings and Stockholders VMG Blocker shall not, and shall not authorize directly or permit indirectly, through any officer, director, manager, employee, agent or otherwise (including through any investment banker, attorney or accountant retained by any of their respective the foregoing), solicit, initiate or encourage the submission of any proposal or offer from any Person (including any of such Person’s officers, directors, employees, agents, representatives agents or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliatesrepresentatives) relating to any liquidation, dissolution, recapitalization or refinancing of Voyage Holdings, VMG Blocker, Quest Nutrition, LLC or their respective Subsidiaries, or any acquisition by any means of the direct capital stock or indirect dispositionother securities of Voyage Holdings, whether by saleVMG Blocker or Quest Nutrition, merger LLC, or otherwise, of all or any portion substantially all of the Business assets of any of Voyage Holdings, VMG Blocker or the Purchased Assets Quest Nutrition, LLC (including any acquisition structured as a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessmerger, consolidation, share exchange or similar transaction), or (ii) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or furnish to any other Person any information with respect to, or accept, agree to, or enter into into, any Contract, letter of intent, arrangement or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations agreement with respect to or otherwise cooperate in any Competing Transaction way with, assist, participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do, any of the foregoing. Each of Voyage Holdings and request each Person the Sellers also agree that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by the event any third party expresses an interest in acquiring Voyage Holdings, VMG Blocker or on behalf ofQuest Nutrition, or with respect toLLC, the Seller, the Business or the Purchased Assets.
(c) From after the date hereof through of this Agreement and prior to the Exclusivity Termination Closing Date, if whether directly or through an intermediary, it will inform Buyer of the Seller or terms of such inquiry within twenty-four (24) hours of receipt; provided, that to the extent that such disclosures would violate the terms of any Stockholder receives binding contractual obligations with any inquirythird party, proposal, or offer relating nothing herein shall require Voyage Holdings and the Sellers to a Competing Transaction, or disclose the terms of any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiryinquiry or any information, proposal, offer, or request, other than that such an inquiry was so received. Each of Voyage Holdings and the terms Sellers shall immediately terminate any existing activities, discussions, negotiations and/or correspondence with any Person (other than Buyer and details thereofits representatives) regarding any such transaction, including a copy of terminating any writing (including access to any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance online or other equitable relief to prevent datasites and shall instruct any Person with whom Voyage Holdings or the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of Sellers had discussions or negotiations concerning any such breach), without transaction prior to the necessity of posting a bond date hereof to return or other securitydestroy any confidential information.
Appears in 1 contract
Sources: Stock and Unit Purchase Agreement (Simply Good Foods Co)
Exclusivity. (a) From and after the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller Seller, FGWLA, CLAC and Stockholders their Affiliate shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: , through any director, officer, employee, shareholder, financial advisor, representative or agent of such Person (i) solicit, initiate, encourage, aid or encourage (including by way of furnishing information or advice) or take any other action to facilitate any inquiries or (to the extent within such Person’s control) permit the submission of any proposal, inquiryproposals that constitute, or could reasonably be expected to lead to, a proposal or offer from for a merger, consolidation, amalgamation, business combination, sale or transfer of assets or properties, sale of shares of capital stock (including by way of a tender or exchange offer), or similar transaction involving any part of the Acquired Operations (an “Acquisition Proposal”), (ii) engage in negotiations or discussions with any Person (other than Buyer or any group of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”Persons) other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessPurchaser or its advisors (an “Alternate Bidder”) concerning, or provide any nonpublic information or advice to any Person relating to, any Acquisition Proposal, (iiiii) furnish continue any information, participate in any prior discussions or negotiationsnegotiations with any Alternate Bidder concerning any Acquisition Proposal or (iv) accept, or enter into any Contract, letter of intent, or other understanding contract (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following not contingent upon consummation of the execution of transactions contemplated by this Agreement) concerning, each any Acquisition Proposal with any Alternate Bidder or consummate any Acquisition Proposal other than as contemplated by this Agreement. In the event that any of Seller, FGWLA, CLAC or their Affiliate receives an Acquisition Proposal, the Person receiving such Acquisition Proposal shall promptly notify Purchaser of such proposal and provide a copy thereof (if in written or electronic form) or, if in oral form, a written summary of the Seller terms and Stockholders will terminate any conditions thereof, including the names of the interested parties. Seller, FGWLA, CLAC and their Affiliate shall request that all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore Alternate Bidders who executed a confidentiality agreement in connection with the consideration of a Competing Transaction to return possible Acquisition Proposal (each a “Seller Confidentiality Agreement”) return, or destroy, all confidential information heretofore furnished to such Person Alternate Bidder by or on behalf ofof Seller, or with respect toFGWLA, CLAC, the Seller, Seller Subsidiaries or their Affiliates subject to the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing terms of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoSeller Confidentiality Agreement.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From The Vendor and the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall Shareholder each agree that they will not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) , through any officer, director, employee, partner, agent, representative or otherwise, make, solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, encourage a proposal or offer from any Person (other than Buyer person or any of its Affiliates) entity relating to any acquisition or purchase of an Acquisition Proposal for a period commencing on the direct or indirect dispositiondate this Agreement is executed, whether by salecontinuing up to and including the later of December 31, merger or otherwise, of all or any portion of the Business 2016 or the Purchased Assets Closing Date (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction"Exclusivity Period").
(b) Immediately Notwithstanding Section 8.8(a), if, at any time following the execution date of this AgreementAgreement and prior to obtaining the Shareholder Approval, each the Shareholder or the Vendor receives an unsolicited Acquisition Proposal, which, as concluded in good faith by the Vendor's or Shareholder's board of directors, constitutes or, if consummated in accordance with its terms, could reasonably be expected to be a Superior Proposal, then the Seller Vendor or the Shareholder may: (i) furnish information with respect to the Vendor or the Shareholder and Stockholders will terminate any its subsidiaries to the person making such Acquisition Proposal; and/or (ii) enter into, participate, facilitate and all maintain discussions or negotiations with, and otherwise cooperate with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect toassist, the Sellerperson making such Acquisition Proposal. In the event it receives an Acquisition Proposal, the Business Vendor or the Purchased AssetsShareholder shall promptly notify the Purchaser in writing within 48 hours of receipt of the Acquisition Proposal, including the material terms and conditions thereof.
(c) From Notwithstanding Section 8.8(a), if, at any time following the date hereof through of this Agreement and prior to obtaining the Exclusivity Termination DateShareholder Approval, if the Seller Shareholder or any Stockholder the Vendor receives any inquiryan unsolicited Acquisition Proposal, proposalwhich, as concluded in good faith by Vendor's or Shareholder's board of directors, constitutes a Superior Proposal, the Vendor may terminate this Agreement so as to enter into a definitive agreement with respect to such Superior Proposal, provided that the Vendor or Shareholder shall, upon providing notice of such termination to the Purchaser, pay to the Purchaser a termination fee in the amount of $160,000 (the "Break Fee") and, for greater certainty, a refund of the Deposit to the Purchaser. The Break Fee and the Deposit shall be paid to the Purchaser, by way of certified cheque, bank draft, certified solicitor's trust cheque, or offer relating wire transfer, at the time that notice of termination of this Agreement is delivered to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity Purchaser. Each of the Person making such inquiryVendor, proposal, offer, or request, the Shareholder and the terms Purchaser acknowledge that such sum will be the sole and details thereof, including a copy exclusive remedy in lieu of any writing (including any electronic mail) relating theretoother damages or remedies available to the Purchaser at law or in equity for such termination of this Agreement by the Vendor and Shareholder.
(d) Each of the Seller Vendor and Stockholders hereby acknowledges the Shareholder covenants that it will not accept, approve, endorse, recommend or enter into any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andagreement, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance understanding or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled arrangement in respect of a Superior Proposal unless: (i) the Vendor and Shareholder has complied with their obligations under Section 8.9(b) and has provided the Purchaser with a copy of the Superior Proposal; and (ii) a period (the “Response Period”) of five business days has elapsed from the date that is the later of (x) the date on which the Purchaser receives written notice from the Vendor or the Shareholder that the board of directors of the Vendor or the Shareholder has determined, subject only to compliance with this Section 8.9(d), to accept, approve, endorse, recommend or enter into a definitive agreement with respect to such Superior Proposal, and (y) the date the Purchaser receives a copy of the Superior Proposal. During the Response Period, Purchaser will have the right, but not the obligation, to offer to amend this Agreement, including an increase in, or modification of, the Purchase Price. Board of directors of the Vendor or the Shareholder shall review any such breach)written offer by the Purchaser to amend this Agreement to determine whether the Acquisition Proposal to which Purchaser is responding would continue to be a Superior Proposal when assessed against such proposed amendment. If the board of directors of Vendor and Shareholder determine that the Acquisition Proposal no longer constitutes a Superior Proposal, without the necessity Vendor and Shareholder will enter into an amendment to this Agreement with the Purchaser incorporating the amendments to the Agreement as set out in the written offer to amend. If the board of posting directors of the Vendor and the Shareholder determine that the Acquisition Proposal continues to be a bond Superior Proposal, the Vendor and the Shareholder may terminate this Agreement pursuant to Section 8.9(b) in order to accept or other securityenter into an agreement, understanding or arrangement to proceed with the Superior Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement
Exclusivity. (a) From Following the date hereof hereof, until the earlier of (i) the Closing Date, Effective Time or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders Parent shall not, and it shall not authorize or permit any of their respective cause its officers, directors, employees, advisors, agents, representatives or representatives, stockholders and Affiliates (collectively, “Representatives”) not to, directly or indirectly, take any of the following actions with any party other than Parent and its designees: (ia) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives knowingly encourage any inquiry, proposal, proposal or offer relating to a Competing Transaction (each, a “Proposal”), (b) participate in or encourage any communications, discussions or negotiations relating to, or disclose or furnish to any person or entity any information in connection with, or assist, or cooperate with any person or entity in making or proposing, or take any other action to facilitate, any Proposal or Competing Transaction, or (c) enter into any request for information agreement, arrangement or understanding (whether binding or nonbinding, written or oral) relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offerto, or requestengage in or consummate, any Competing Transaction. Parent shall promptly advise and provide copies (if written) to the Company Parent of, or provide to Company Parent a summary (if not written) of the principal terms of, any Proposal that has been submitted, directly or indirectly, to Parent, its Affiliates or Subsidiaries or any of its or their respective Representatives, including the identity of the party making such Proposal and any other information Parent may reasonably request with respect to such Proposal. Parent shall promptly advise Company Parent of any request for disclosure or access described in clause (b) of this Section 4.2(a), including the identity of the party requesting such disclosure or access.
(b) Notwithstanding the foregoing, at any time prior to the receipt of the approval of the holders of more than 50% of the Parent Common Stock referenced in Section 5.3(a), Parent and its Representatives may, in response to a bona fide written Proposal that the Board of Directors of Parent determines in good faith (after consultation with outside counsel and the Parent’s financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal, and which Proposal was not solicited by Parent or any of its Representatives and did not otherwise result from a breach of this Section 4.2, (x) furnish information with respect to Parent and its Subsidiaries to the Person making such inquiry, proposal, offer, or requestProposal (and its Representatives) pursuant to a customary confidentiality agreement, and (y) participate in discussions or negotiations with the Person making such Proposal (and its Representatives) regarding such Proposal.
(c) Notwithstanding anything in this Agreement to the contrary, Parent may not terminate this Agreement pursuant to Section 8.4 until after the fifth Business Day following the Company’s receipt of written notice from Parent advising the Company that the Board of Directors of Parent intends to terminate this Agreement pursuant to Section 8.4. Such notice from Parent to the Company shall specify the reasons therefor, including the terms and details thereof, including a copy conditions of any writing Superior Proposal that is the basis of the proposed action by the Board of Directors of Parent (including it being understood and agreed that any electronic mail) relating theretoamendment to the financial terms or any other material term of such Superior Proposal shall require a new written notice by Parent and a new five Business Day period). In determining whether to terminate this Agreement pursuant to Section 8.4, the Board of Directors of Parent shall take into account any changes to the financial terms of this Agreement proposed by the Company in response to any such written notice by Parent or otherwise.
(d) Each For purposes hereof, “Superior Proposal” means any bona fide written offer by a third party that (i) if consummated would result in such third party (or in the case of a direct merger between such third party and Parent, the stockholders of such third party) acquiring, directly or indirectly, more than fifty percent (50%) of the Seller voting power of the Parent Common Stock or all or substantially all the assets of Parent, for consideration consisting of cash and/or securities, (ii) that the Board of Directors of Parent determines in its good faith judgment (after consultation with the Parent’s financial advisor and Stockholders hereby acknowledges after considering such factors as the Board of Directors of Parent considers to be appropriate, including the legal, financial, timing, regulatory and other aspects of the proposal), if consummated, would result in a transaction that is more favorable to Parent’s stockholders from a financial point of view than the Merger and the other transactions contemplated by this Agreement (after taking into account any breach changes to this Agreement proposed by the Company in response to a Proposal), and (iii) is reasonably capable of this Section 6.11 would cause substantial being completed, taking into account all financial, legal, regulatory and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach aspects of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityproposal.
Appears in 1 contract
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) the Closing Date, Date or the Termination Date (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”defined in Section 12.1 below), the Seller and Stockholders shall not, and nor shall not authorize or Seller permit any of their respective its officers, directors, employees, agentsaffiliates, representatives or Affiliates toagents to (including, without limitation, investment bankers, financial advisors, brokers and other advisors) (collectively, the "Representatives"), directly or indirectly: indirectly do any of the following (provided that, with respect to PKA, the following covenants shall only relate to the Film Assets):
(i) solicitdiscuss, initiatenegotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction (an "Acquisition Transaction") involving any disposition or other change of ownership or control of a substantial portion of Seller's stock or assets or any assumption by Seller of substantial liabilities, including, without limitation, any joint venture or partnership involving any of the foregoing (other than the transaction contemplated in this Agreement);
(ii) facilitate, encourage, facilitate solicit or initiate or in any way engage in discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction (other than the transaction contemplated in this Agreement);
(iii) furnish or cause to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from be furnished to any Person (other than Buyer or its representatives) any information concerning the business, operations, properties or assets of Seller in connection with an Acquisition Transaction; or
(iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of its Affiliates) relating to the direct or indirect dispositionforegoing. Seller shall inform Buyer by telephone, whether by sale, merger or otherwisewithin 24 hours, of all Seller's receipt of any proposal or bid (including the terms thereof and the Person making such proposal or bid) in respect of any portion of the Business or the Purchased Assets (a “Competing Transaction”) Acquisition Transaction other than acquisitions of the Purchased Assets transaction described in the Ordinary Course of Businessthis Agreement. Seller shall, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the immediately upon execution of this Agreement, each of the Seller and Stockholders will terminate any and instruct its Representatives to cease all discussions or negotiations further activities with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by the sale of Seller or on behalf ofSeller's assets, or with respect toincluding, without limitation, the Seller, the Business or the Purchased Assetsdissemination of information.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From During the date hereof until Interim Period, neither the earlier of (i) the Closing DateCompany, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit nor any of their respective officers, directors, employees, agents, representatives or Affiliates its Representatives acting on its behalf (including the Company Stockholders) will (and the Company will cause its Representatives (including the Company Stockholders) not to), directly or indirectly: (i) solicit, initiate, solicit, encourage, facilitate or (to the extent within such Person’s control) permit the submission of provide any proposal, inquiryinformation with respect to, or offer from participate in, discussions, negotiations or transactions with any Person (other than Buyer Acquiror and its Representatives (including the Insiders)), or enter into or deliver any agreement (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument), with respect to any sale or other disposition (however effected) of all or substantially all of the assets of the Company or its Equity Securities other than the Transactions contemplated by this Agreement (a “Company Alternative Transaction”) nor shall it permit any of its AffiliatesRepresentatives (including any Company Stockholder) relating to the direct or indirect dispositiontake, whether by saledirectly or indirectly, merger any action to solicit, initiate, continue or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets engage in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiationsnegotiations with, or enter into any Contract, letter of intentagreement with, or other understanding (whether written, oral, binding, non-binding, encourage or otherwise) respond to any proposal with respect to a Company Alternative Transaction. The Company shall promptly advise Acquiror of any inquiry or proposal regarding a Competing Company Alternative Transaction it may receive following the date hereof (including the terms related thereto). The Company and its Representatives (including the Company Stockholders) shall immediately discontinue any discussions or negotiations relating to any Company Alternative Transaction.
(b) Immediately following During the execution Interim Period, neither Acquiror nor any of this Agreementits Representatives acting on its behalf (including any Insider) will (and Acquiror will cause its Representatives (including any Insider) not to), each directly or indirectly, initiate, solicit, encourage, provide any information with respect to, or participate in, discussions, negotiations and/or transactions with any person (other than the Company and its Representatives (including the Company Stockholders)), and/or enter into or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument), with respect to any business combination transaction involving Acquiror and all or a material portion of the Seller asset(s) and/or business(es) of any other person(s), whether by way of stock purchase, asset purchase, merger, business combination or otherwise, other than the Transactions contemplated by this Agreement (a “Acquiror Alternative Transaction”) nor shall it permit any of its Representatives (including the Sponsor) to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage or respond to any proposal with respect to a Acquiror Alternative Transaction. Acquiror and Stockholders will terminate its Representatives (including any Inisder) shall immediately discontinue any and all discussions or negotiations with respect relating to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased AssetsAcquiror Alternative Transaction.
(c) From Notwithstanding anything to the date hereof through the Exclusivity Termination Datecontrary, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and no Party shall be in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer 7.03 (including for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect purposes of any of the conditions set forth in Section 8.02 or Section 8.03) unless and to the extent that such breach), without the necessity Party has committed a Willful Breach of posting a bond or other securitythis Section 7.03.
Appears in 1 contract
Sources: Merger Agreement (Battery Future Acquisition Corp.)
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders The Company shall not, and the Company shall not authorize or permit any require each of their respective its officers, directors, employees, agents, representatives or Affiliates and agents not to, directly or indirectly: , (i) initiate, solicit, initiateengage in, encourageencourage or otherwise facilitate any inquiry, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, negotiation offer or offer from discussion with any Person party (other than the Buyer) concerning any merger, reorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, sale of material assets or similar business transaction involving the Company, any Subsidiary or any division of the Company, or (ii) subject to the following sentence, furnish any non-public information concerning the business, properties or assets of the Company, any Subsidiary or any division of the Company to any party, other than (A) pursuant to the existing contractual obligations of the Company set forth on Schedule 4.7, (B) the Buyer or any of its Affiliates(C) relating to the direct existing or indirect dispositionpotential Power Links partners, whether by salecustomers, merger consultants, vendors or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets suppliers in the Ordinary Course of Business; provided that, subject to the following sentence, nothing herein shall be deemed to prohibit any director of the Company who is a representative of a Company Stockholder on the Company’s board of directors, from disclosing any such information to such Company Stockholder’s officers, directors, managers, general partners or (ii) financial or legal advisors if such recipients reasonably need to know such information and are bound by a professional duty or a contractual obligation of confidentiality with respect to such information. Notwithstanding anything herein to the contrary, the Company shall not, and the Company shall require each of its officers, directors, employees, representatives and agents not to, directly or indirectly furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-bindingpublic information concerning the business, properties or otherwiseassets of the Company, any Subsidiary or any division of the Company to any party with any intention to initiate, solicit, encourage or otherwise facilitate any inquiry, proposal, offer or discussion of the nature described in clause (i) regarding a Competing Transactionabove.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate The Company shall immediately notify any and all party with which discussions or negotiations with respect to of the nature described in clause (i) of paragraph (a) above were pending at the date of this Agreement that the Company is terminating such discussions or negotiations. If the Company receives any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement proposal, offer or written inquiry of the nature described in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect toclause (i) of paragraph (a) above, the SellerCompany shall, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Daybusiness day after such receipt, notify the Buyer in writing of such inquiry, proposal, proposal or offer, or request, including the identity of the Person making other party and the terms of such inquiry, proposal, proposal or offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger Agreement (Blackboard Inc)
Exclusivity. (a) From In consideration of the time, effort and other expense expended by ▇▇▇▇▇ in connection with the Contemplated Transactions, Sellers will not, and will cause the Seller Affiliates and each of their respective Representatives not to, after the date hereof of this Agreement and until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant in accordance with Article 12, whether directly or indirectly, (a) solicit, facilitate, initiate, continue, respond to Article IX or engage in discussions or negotiations with any Person, directly or indirectly (whether such earlier date being referred to herein as the “Exclusivity Termination Date”)negotiations are initiated by Sellers, the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officersRepresentatives or otherwise), directorsother than Buyer (or its designated Representatives), employees, agents, representatives or Affiliates to, directly or indirectly: relating to (i) solicitthe possible acquisition or lease of any of the Purchased Assets (or a material portion thereof, initiateother than sales, encourage, facilitate leases or other dispositions in the ordinary course of business) or any direct equity interest in any Seller (including by merger or consolidation) or 50% or more of any equity interest in any entity that indirectly owns any of the Purchased Assets (including by merger or consolidation) or (ii) any other similar significant transaction involving the Purchased Assets (each, an “Alternative Transaction”); (b) provide information or documentation with respect to any of the extent within such Purchased Assets to any Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer (or its designated Representatives) or as required by Law, relating to an Alternative Transaction; (c) afford any access to the Seller Employees, Facilities or Purchased Assets to any person or entity, other than Buyer (or its designated Representatives), relating to an Alternative Transaction; (d) enter into an understanding, arrangement or agreement with any Person, other than Buyer (or its designated Representatives), providing for an Alternative Transaction; or (e) otherwise assist or facilitate the making of, or cooperate in any way regarding any inquiry, offer or proposal by any Person, other than Buyer (or its designated Representatives), relating to an Alternative Transaction. If any Seller or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder Representatives receives any inquiry, proposal, offer or offer proposal relating to a Competing an Alternative Transaction, or any request for information relating thereto, then such party will promptly, and in any event within one (1) Business Day, Seller shall promptly notify Buyer in writing thereof, including information as to the substance of such inquiry, proposal, offer, offer or request, including proposal but excluding the identity of the Person making such inquiry, offer or proposal, offerunless Seller is prohibited from so notifying Buyer pursuant to any non-disclosure agreement in effect as of the date hereof. Notwithstanding the foregoing, (1) Sellers and the Seller Affiliates shall be permitted to engage in any direct or requestindirect sale, purchase, joint venture, management, clinical integration or service line development arrangement or similar transaction with any Person, so long as such arrangement or transaction does not relate to any of the Purchased Assets, and (2) Sellers and the Seller Affiliates may directly and indirectly engage in corporate-level acquisitions, dispositions or similar transactions of the stock or securities of Seller Guarantor, including macro-level mergers, recapitalizations or reorganizations, so long as the acquiror remains bound by the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement
Exclusivity. (a) From Except as set forth on Schedule 9.4, neither the date hereof until Company nor the earlier of (i) the Closing DateManager, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of the Class A Members nor anyone acting on their respective officers, directors, employees, agents, representatives or Affiliates tobehalf is currently involved, directly or indirectly: , in any activity which is intended to, nor for so long as this Agreement is in effect, shall the Company, the Manager or any of the Class A Members or anyone acting on their behalf, directly or indirectly, (i) encourage, solicit, initiateinitiate or participate in discussions or negotiations with, encourageor provide any information to or cooperate in any manner with any Person, facilitate other than Purchaser or its Affiliates (collectively “Excluded Persons”), or an officer, partner, employee or other representative of an Excluded Person, concerning the sale of all or any part of the Business, any of the Companies’ assets (other than in the ordinary course of business), the Units or any capital stock, membership interests or other securities of the Company or any of its Subsidiaries, whether such transaction takes the form of a sale of units, assets, merger, consolidation, or issuance of debt securities or making of a loan or otherwise or any joint venture or partnership, (ii) otherwise solicit, initiate or encourage the submission (or attempt to submit) of any inquiry or proposal contemplating the sale of all or any part of the Business, the sale of the Companies’ assets (other than in the ordinary course of business), the Units or any capital stock, membership interests or other securities of the Companies, whether such transaction takes the form of a sale of equity, assets, merger, consolidation or otherwise, or issuance of debt securities or making of a loan or any joint venture or partnership or (iii) consummate any such transaction or accept any offer or agree to engage in any such transaction. The Company or the extent Members shall promptly (within such Person’s control24 hours) permit communicate to Purchaser the submission terms of any proposal, inquiry, contract or offer from any Person (other than Buyer or sale which it may receive in respect of any of its Affiliates) relating the foregoing and respond to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion such communication in a manner reasonably acceptable to Purchaser. The notice of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of Company and each Member under this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Section 9.4 shall include the identity of the Person person making such inquiry, proposal, proposal or offer, copies (if written) or request, and a written description of the terms (if oral) thereof and details thereof, including a copy of any writing (including any electronic mail) relating theretoother such information with respect thereto as Purchaser may reasonably request.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger and Share Exchange Agreement (China VantagePoint Acquisition Co)
Exclusivity. Each Equityholder and the Company and its Subsidiaries (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any each of their respective officersowners, directors, officers, employees, agentsadvisors, representatives Representatives, agents or Affiliates toAffiliates) (the “Company Group”) shall not, directly or indirectly: , (i) solicitengage in, initiate, encourage, facilitate solicit or (to the extent within such Person’s control) permit the submission of initiate any proposal, inquirydiscussions or negotiations with, or offer from provide any information to (except to confirm that this Agreement exists or as may be required by law or court order), or negotiate or enter into any agreement or agreement in principle, whether written or oral, with, any other Person with respect to a sale of the Company or any of its Subsidiaries, the assets of the Company or any of its Subsidiaries, the Equity Securities of the Company or any of its Subsidiaries or any similar business combination transaction, except as permitted by Section 5.1, (the foregoing actions, each a “Third Party Acquisition”) and (ii) provide any non-public financial or other confidential or proprietary information regarding the Company or any Subsidiaries (including this Agreement and any other materials containing Buyer’s or its Affiliates’ proposal and any other financial information, projections or proposals regarding the Company) to any Person (other than Buyer or its representatives and agents and any other Person Buyer designates), or take any other action to facilitate any inquiries or the making of its Affiliatesany proposal that constitute, or would reasonably be expected to result in, a Third Party Acquisition. Each Equityholder and the Company agrees to (i) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all immediately notify Buyer if it or any portion member of the Business Company Group receives after the date hereof any indications of interest, requests for information or the Purchased Assets (offers in respect of a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessproposal for a Third Party Acquisition, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect communicate to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing reasonable detail the terms of any such inquiryindication, proposal, offer, request or request, proposal (including the identity of the Person making such inquiry, proposal, offer, or request, third party) and the terms and details thereof, including a copy (iii) provide Buyer with copies of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage all written communications related to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach)indication, without the necessity of posting a bond request or other securityproposal.
Appears in 1 contract
Exclusivity. In consideration of the time, effort, expense, and other resources the Purchasers have expended and anticipate expending to consummate the transactions contemplated hereby, the Purchasers and the Company agree as follows:
(ai) From the date hereof until Until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither the “Exclusivity Termination Date”)Company nor any of its Subsidiaries shall, the Seller and Stockholders shall notdirectly or indirectly, and shall not authorize or permit through any of their respective officers, directors, employees, agentsrepresentatives, representatives agents or Affiliates tootherwise (including, directly without limitation, through any investment banker, attorney or indirectly: accountant retained by the Company or any of its Subsidiaries) (icollectively, the "Company Parties"), without the prior written consent of the Majority Purchasers, (A) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiryother proposal or offer from, or offer from otherwise enter into any other agreements or arrangements (other than this Agreement) with, any other Person (other than Buyer or any of its Affiliates) the Purchasers), relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, Alternative Transaction Proposal or (iiB) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential any information heretofore furnished to such Person by or on behalf of, or with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the Seller, the Business or the Purchased Assetsforegoing.
(cii) From As long as the date hereof through agreements in this Section 3M are in effect, the Exclusivity Termination Date, if Company will notify the Seller or Purchasers as promptly as practicable after any Stockholder receives Company Party learns that any inquiry, proposal, or offer relating to a Competing Transaction, or Person has made any request for information relating thereto, such party will promptly, and in any event within one Alternative Transaction Proposal (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the such Person making such inquiry, proposal, offer, or request, and the terms of such proposal). The Board shall promptly advise the Purchasers orally and details thereof, including a copy of any in writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect status of any such breach)Alternative Transaction Proposal as developments arise or as requested by the Purchasers. The Company represents and warrants to the Purchasers that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction Proposal and the Company will keep the Purchasers fully informed of the status and details (including amendments and proposed amendments) of any such request, without the necessity of posting a bond Alternative Transaction Proposal or other securityinquiry. The Company further represents and warrants that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction.
Appears in 1 contract
Exclusivity. (a) From The Sellers agree that between the date hereof until of this Agreement and the earlier of (i) the Closing Date, or (ii) and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders Sellers shall not, not and shall not authorize take all action necessary to ensure that none of their respective Affiliates or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toRepresentatives shall, directly or indirectly: (ia) solicit, initiate, encourage, facilitate encourage or (agree to the extent within such Person’s control) permit the submission of any proposal, inquiry, other proposals or offer offers from any Person (other than Buyer or any of the Purchaser, its AffiliatesAffiliates and its and their respective Representatives) relating to the any direct or indirect dispositionacquisition or purchase of all or any material portion of the Business, whether effected by salesale 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 Business, whether effected by sale of assets, sale of stock, merger or otherwise. The Sellers shall immediately terminate access to any portion “data room” provided to any Person (other than the Purchaser, its Affiliates and its and their respective Representatives) in connection with the sale of the Business. Notwithstanding this Section 5.17 or any other provision of this Agreement, nothing in this Agreement shall prevent or prohibit any of the Sellers, their Affiliates or their respective Representatives from continuing to prepare for an initial public offering of the Business or to occur, if at all, following the Purchased Assets (a “Competing Transaction”) other than acquisitions termination of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transactionthis Agreement.
(b) Immediately following The Sellers shall notify the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will Purchaser promptly, and but in any event within one (1) two Business DayDays, notify Buyer orally and in writing of if any such inquiry, proposal, proposal or offer, or requestany inquiry or other contact with any Person with respect thereto, including is made. If, and only if, the Sellers have received two or more such proposals or offers, the notice to the Purchaser shall indicate in reasonable detail the identity of the Person all Persons making such inquiryproposals, proposaloffers, offer, inquiries or request, other contacts and the terms and details thereofconditions of such proposals, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andoffers, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance inquiries or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitycontacts.
Appears in 1 contract
Sources: Purchase Agreement (Forterra, Inc.)
Exclusivity. (a) From the date hereof Execution Date until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with Section 12.1, the Seller Blockers and Stockholders their respective controlled Affiliates and the Company shall not, and shall cause their Subsidiaries, and shall use their reasonable best efforts to cause their other Affiliates and respective representatives not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: , (ia) solicit, initiate, encourage, initiate or knowingly take any action to facilitate or (to encourage any inquiries or the extent within such Person’s control) permit the making, submission of or announcement of, any proposal, inquiry, proposal or offer from any Person (or group of Persons other than the Buyer or any of its Affiliatesand the Sponsor (and their respective representatives, acting in their capacity as such) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing TransactionBuyer”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessthat may constitute, or would reasonably be expected to lead to, a Competing Transaction; (iib) furnish any informationenter into, participate in in, continue or otherwise engage in, any discussions or negotiations, or enter into negotiations with any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) Competing Buyer regarding a Competing Transaction; (c) furnish (including through any virtual data room) any information relating to the Blockers or any Group Company or any of their assets or businesses, or afford access to the assets, business, properties, books or records of the Blockers or any Group Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Competing Transaction; (d) approve, endorse or recommend any Competing Transaction; or (e) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so.
(b) Immediately following From the execution Execution Date, until the earlier of the Closing or the termination of this AgreementAgreement in accordance with Section 12.1, each the Buyer, the Sponsor and their respective Affiliates shall not, and shall cause their respective representatives not to, directly or indirectly, (a) solicit, initiate or knowingly take any action to facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from the Buyer, the Sponsor, any Person or group of Persons other than the Seller Company and Stockholders will terminate the Company Equityholders that may constitute, or would reasonably be expected to lead to, a Buyer Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any and all discussions or negotiations regarding a Buyer Competing Transaction; (c) commence due diligence with respect to any Person, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (d) approve, endorse or recommend any Buyer Competing Transaction; or (e) enter into a Buyer Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives agreement, arrangement or understanding (including any inquiry, proposal, letter of intent or offer term sheet) relating to a Buyer Competing Transaction, Transaction or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretopublicly announce an intention to do so.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Business Combination Agreement (Thayer Ventures Acquisition Corp)
Exclusivity. (a) From and after the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders shall not, and shall not authorize or permit any of their respective its directors, officers, directors, employees, agents, representatives employees or Affiliates torepresentatives, directly or indirectly: indirectly through another Person, to (i) solicit, initiate, initiate or encourage, or take any other action designed to, or to facilitate any inquiries with respect to or (to the extent within such Person’s control) permit the submission making of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, Takeover Proposal or (ii) furnish any informationenter into, continue or otherwise participate in any discussions or negotiationsnegotiations regarding, or enter into furnish to any Contract, letter of intentPerson any information with respect to, or other understanding otherwise cooperate in any way with, any Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the approval of Seller’s shareholders of the transactions contemplated by this Agreement, if the board of directors of Seller determines in good faith (whether writtenafter consultation with Seller’s outside counsel and financial advisors), oralin response to a bona fide written Takeover Proposal that was unsolicited, bindingmade after the date of this Agreement, nonand did not otherwise result from a breach of this Section 5.7, that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then, subject in each case to compliance with Section 5.7(c), Seller may (i) furnish information with respect to Seller to the Person making such Takeover Proposal pursuant to a customary confidentiality agreement, and (ii) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, that notice of such determination and the basis therefor is promptly (and in any event within 48 hours of such determination) given to Buyer; and provided, further, that such confidentiality agreement (A) is no less restrictive to such Person than the provisions of that certain Non-bindingDisclosure Agreement, between Buyer and Seller, (B) does not provide for an exclusive right to negotiate with Seller, (C) contains “standstill” terms restricting the Person from commencing a public tender offer or otherwiseotherwise acquiring shares of Seller’s capital stock, and (D) regarding a Competing Transactiondoes not hinder or restrict Seller from complying with any provision of this Agreement; and provided, further, that all such information has previously been provided to Buyer or is provided to Buyer prior to or concurrently with the time it is provided to such Person.
(b) Immediately following Neither the execution board of directors of Seller nor any committee thereof shall (i) (A) withdraw (or qualify or modify in a manner adverse to Buyer), or publicly propose to withdraw (or qualify or modify in a manner adverse to Buyer), the approval, adoption or recommendation by the board of directors or any committee thereof of this Agreement or the purchase of the Business Assets contemplated by this Agreement or (B) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, any Takeover Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation”) or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow Seller to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar arrangement constituting or related to, or that is intended to or could reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in Section 5.7(a)) (a “Seller Acquisition Agreement”). Notwithstanding the foregoing, at any time prior to obtaining the approval of Seller’s shareholders of the transactions contemplated by this Agreement and subject to Section 5.7(c), the board of directors of Seller, in response to a Takeover Proposal that the board of directors of Seller determines in good faith (after consultation with its outside counsel and financial advisors) constitutes a Superior Proposal that was unsolicited, made after the date of this Agreement, each and did not otherwise result from a breach of this Section 5.7(a), may make an Adverse Recommendation; provided, however, that Seller shall not be entitled to exercise its right to make an Adverse Recommendation pursuant hereto (x) if it is in breach of its obligations under this Section 5.7 and (y) until after the tenth Business Day following Buyer’s receipt of notice (a “Notice of Superior Proposal”) from Seller advising Seller that the board of directors of Seller intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the board of directors (it being understood and agreed that any material amendment to the financial or any other term of such Superior Proposal shall require a new Notice of Superior Proposal and a new ten Business Day period); provided, that if Seller gives notice pursuant to clause (y) within ten Business Days of the date of the Seller shareholders’ meeting, Seller shall, subject to the requirements of applicable law, postpone the Seller shareholders’ meeting to a date and Stockholders will terminate any and all discussions or negotiations with respect time to any Competing Transaction and request each Person ensure that Buyer has heretofore executed ten business days’ notice following receipt of the notice of Superior Proposal before the Seller shareholders’ meeting. In determining whether to make a confidentiality agreement in connection with a Competing Transaction Seller Adverse Recommendation pursuant to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect tothis Section 5.7(b), the Seller, board of directors of Seller shall consider in good faith any changes to the Business financial terms of this Agreement proposed by Buyer in response to a Notice of Superior Proposal or the Purchased Assetsotherwise.
(c) From In addition to the date hereof through the Exclusivity Termination Dateobligations of Seller set forth in Sections 5.7(a) and (b), if the Seller or shall provide notice to Buyer of any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, Takeover Proposal as promptly as reasonably practicable (and in any event within one 48 hours) after the receipt or delivery thereof, which notice shall include a description of the material terms and conditions of any such Takeover Proposal (1including any changes thereto) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including and the identity of the Person making any such inquiry, proposal, offer, or request, and Takeover Proposal. Seller shall (i) keep Buyer fully informed in all material respects of the terms status and details thereof, including a copy of any writing (including any electronic mailchange to the terms thereof) relating theretoof any Takeover Proposal and (ii) provide to Buyer copies of all correspondence and other written material sent or provided to Seller from any Person that describe any of the terms or conditions of any Takeover Proposal, in each case as promptly as reasonably practicable (and in any event within 48 hours) after receipt or delivery thereof.
(d) Each Nothing contained in this Section 5.7 shall prohibit Seller from (x) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Securities Exchange Act or a statement required under Rule 14a-9 under the Securities Exchange Act or (y) making any disclosure to the shareholders of the Seller and Stockholders hereby acknowledges that is required by applicable law; provided, however, that in no event shall Seller or its board of directors or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.7(b) (it being understood that any breach accurate disclosure of this factual information to the shareholders of Seller that is required to be made to such shareholders under applicable federal securities laws shall not be considered a modification prohibited by clause (i)(A) of Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach5.7(b), without the necessity of posting a bond or other security).
Appears in 1 contract
Exclusivity. During the period beginning on the date hereof and ending on the earlier of the Closing Date or the Termination Date, except with respect to this Agreement and the Transactions, the Company agrees that it will not, it will use its reasonable best efforts to cause its directors, officers, and employees not to, and it shall direct its 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) From the date hereof until the earlier of (i) the Closing Dateinitiate, encourage, solicit or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toseek, directly or indirectly: , any inquiries or the making or implementation of any proposal or offer (iincluding, without limitation, any proposal or offer to its Stockholders or any of them individually) solicitwith respect to a merger, initiateacquisition, encourageconsolidation, recapitalization, liquidation, dissolution, equity investment or similar transaction involving, or any purchase of all or any substantial portion of the assets or any securities of, the Company (any such proposal or 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 a Contract, agreement or understanding with any Person relating to a Proposal. If the extent within such Person’s control) permit the submission of Company or any proposal, inquiry, or offer from Agent has provided any Person (other than Buyer’s or the Company’s Agents) with any confidential information or data relating to a Proposal, they shall request the immediate return thereof. The Company shall 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 or any of its Affiliates) relating respective directors, officers, employees and Affiliates or, to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion Knowledge of the Business or the Purchased Assets (a “Competing Transaction”) Company, any other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Agent. Such notice shall disclose the identity of the Person making such inquiry, proposal, offer, or requestparty making, and the terms and details thereofconditions of, including any such Proposal, inquiry or request, and shall include a true and complete copy of any writing (including any electronic mail) relating theretosuch Proposal, inquiry or request, if in writing.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger Agreement (Plug Power Inc)
Exclusivity. (a) From In consideration of the date hereof time, effort and other expense expended by Buyer in connection with the Contemplated Transactions, Seller and the Unitholders will not, and will cause the Seller Affiliates and each of their respective Representatives not to, after the Execution Date and until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to in accordance with Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)12, the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, whether directly or indirectly, (a) initiate, solicit, encourage, respond to, or otherwise facilitate any inquiries or proposals or enter into or continue any discussions, negotiations, understandings, arrangements or agreements (other than with Buyer or its Representatives) relating to: (i) solicit, initiate, encourage, facilitate any sale or lease of all or any material portion of the Purchased Assets or any equity interest in any entity that directly or indirectly owns or leases any portion of the Business or any material portion of the Purchased Assets (including by merger or consolidation); (ii) any management or lease arrangement in connection with the business and operation of the Business; or (to iii) any other material transaction involving all or any material portion of the extent within such Person’s controlPurchased Assets (each an “Alternative Transaction”); (b) permit the submission of provide any proposalassistance, inquiryinformation, documents or data to, or offer from otherwise cooperate or have discussions with, any Person (other than Buyer or its Representatives) in connection with any inquiry, offer, proposal or agreement relating to a possible Alternative Transaction; (c) afford any access to the personnel, offices, facilities, properties or the Books and Records of Seller to any Person (other than Buyer or its AffiliatesRepresentatives) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing an Alternative Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, ; or (iid) furnish any information, participate in any discussions otherwise assist or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following facilitate the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf making of, or with respect tocooperate in any way regarding any inquiry, offer, proposal or agreement by any Person (other than Buyer or their Representatives) relating to a possible Alternative Transaction. In the event an inquiry, offer, proposal or agreement relating to an Alternative Transaction is received by Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination DateUnitholders, if the any Seller Affiliate, or any Stockholder receives any of their respective Representatives from a Person (other than Buyer or its Representatives), Seller and the Unitholders will promptly notify Buyer of the receipt of such inquiry, offer, proposal or agreement, which notice shall include information as to the substance of such inquiry, offer, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, agreement and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, offer, proposal, or agreement, and will promptly notify the Person making such inquiry, offer, proposal, or requestagreement of the existence of this exclusivity covenant (but not disclose the identity of any other Parties to this Agreement or any terms of this Agreement) and of Seller’s unwillingness to discuss any Alternative Transaction until this Agreement is terminated. Seller and the Unitholders agree and acknowledge that the violation of the covenants or agreements in this Section 6.10 would cause irreparable injury to Buyer and its Affiliates and that monetary damages and any other remedies at law for any violation or threatened violation thereof would be inadequate, and the terms that, in addition to whatever other remedies may be available at law or in equity, Buyer and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will its Affiliates shall be entitled to an injunction, specific performance temporary and permanent injunctive or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of proving actual damages or posting a bond or other security. Promptly following the Execution Date, Seller and the Unitholders shall, and shall cause the Seller Affiliates to, request that (i) all Confidential Information previously disclosed to any other Person (except Buyer or its Representatives) in connection with the sale process of the Business be destroyed or returned to Seller; (ii) all notes, abstracts and other documents that contain Confidential Information be destroyed; and (iii) the receiving party of such Confidential Information provide Seller and the Unitholders a written certification of an officer of the receiving party that the foregoing clauses (i) and (ii) have been satisfied.
Appears in 1 contract
Exclusivity. (a) From and after the date hereof until through the earlier of date which is thirty (i30) the Closing Date, or (ii) days following the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as Section 11 hereof, without the “Exclusivity Termination Date”)prior written consent of Aspec, the Seller and Stockholders shall not, and shall not authorize or permit neither Novo nor any of their respective Novo's other officers, directors, employeesshareholders, agents, representatives agents or Affiliates toshall, directly or indirectly: , (ia) solicit, initiateconduct discussions with or engage in negotiations with any person, encourageother than Aspec, facilitate or (relating to the extent within such Person’s control) permit the submission possible acquisition of any proposal, inquiry, or offer from any Person (other than Buyer Novo or any of its Affiliatessubsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (b) provide information with respect to Novo or any of its subsidiaries to any person, other than Aspec, relating to the direct possible acquisition of Novo or indirect disposition, any of its subsidiaries (whether by saleway of merger, merger purchase of capital stock, purchase of assets or otherwise, of all ) or any material portion of the Business its or the Purchased Assets their capital stock or assets, (a “Competing Transaction”c) enter into an agreement with any person, other than acquisitions Aspec, providing for the acquisition of the Purchased Assets Novo or any of its subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (d) make or authorize any statement, recommendation or solicitation in support of any possible acquisition of Novo or any of it subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets by any person, other than by Aspec, (e) enter into any agreement with any person, other than Aspec, providing for any extension of credit (other than trade credit in the Ordinary Course ordinary course of Businessbusiness) or other debt investment in Novo, or (iif) furnish any information, participate in any discussions or negotiations, or enter into any Contractadditional agreement for the licensing or distribution of products, letter of intenttechnology, or other understanding (intellectual property of Novo, whether writtennow existing or hereafter created. In addition to the foregoing, oral, binding, non-binding, if Novo or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution any of this Agreement, each its subsidiaries receives any unsolicited offer or proposal to enter negotiations relating to any of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf ofabove, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, Novo shall immediately notify Buyer in writing of such inquiry, proposal, offer, or requestAspec thereof, including information as to the identity of the Person offeror or the party making any such inquiry, offer or proposal and the specific terms of such offer or proposal, offer, or request, as the case may be. From and after the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each date hereof until the first to occur of the Seller and Stockholders hereby acknowledges that any breach Closing of the Merger or the termination of this Agreement pursuant to Section 6.11 would cause substantial and irreparable damage 11 hereof, no shareholders will transfer or offer to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled transfer any of their Novo Common Stock except to an injunction, specific performance or other equitable relief Aspec pursuant to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityMerger.
Appears in 1 contract
Exclusivity. (a) From Parent shall, and shall cause its Affiliates, and shall instruct its Representatives, to, cease and terminate immediately, from and after the date hereof of this Agreement until the earlier of (i) the Closing DateDate or the date on which this Agreement is validly terminated pursuant to Article X, all solicitations, initiations, encouragements, activities, discussions and/or negotiations with any Person (other than Purchasers and their respective Affiliates and Representatives with respect to the transactions contemplated by this Agreement) conducted prior to the date hereof with respect to any proposed or potential Alternative Transaction (ii) as defined below). From and after the termination date of this Agreement until the earlier of the Closing Date or the date on which this Agreement is validly terminated pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)X, the Seller and Stockholders Parent shall not, and shall cause its Affiliates, and shall instruct its Representatives, not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: , (ia) assist, solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit knowingly encourage the submission of any proposaloffer, inquiry, proposal or offer from indication of interest by any Person (other than Buyer or any of its AffiliatesPurchasers and their respective Affiliates and Representatives) relating to the direct or indirect disposition, whether by sale, merger or otherwise, sale of all any Equity Interests of any of the Transferred Entities or any portion material assets (other than in the ordinary course of business consistent with past practice and in accordance with Section 6.4 of this Agreement) of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or any merger, recapitalization, tender or exchange offer, or other business combination transaction involving any of the Transferred Entities or otherwise involving the material assets of any of Business (iifor the avoidance of doubt, other than the Pre-Closing Restructuring or the transactions contemplated by this Agreement and the Ancillary Agreements) furnish any information(an “Alternative Transaction”), (b) participate in any discussions or negotiationsnegotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate or cooperate in any way with any offers, inquiries or indications of interest or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Alternative Transaction, or (c) authorize, engage in, or enter into any Contract, letter of intent, agreement or other understanding (whether written, oral, or not binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, any Alternative Transaction. From and after the Seller, date of this Agreement until the Business earlier of the Closing Date or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Dateon which this Agreement is validly terminated pursuant to Article X, Parent will promptly notify Purchasers if the Seller or any Stockholder receives any written indication of such interest, inquiry, proposal, proposal or offer relating to a Competing Transactionpossible Alternative Transaction is received by the Parent Group, the Transferred Entities or any request for information relating thereto, such party will promptly, of their respective Affiliates or Representatives from any Person (other than Purchasers and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, their respective Affiliates and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoRepresentatives).
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. Until such time, if any, as this Agreement is terminated pursuant to Article XI, each of Parent, Seller and the Company agrees that it shall not, and shall cause the Subsidiaries and the Affiliates, directors, officers, employees, direct and indirect equity holders and representatives of Parent, Seller, the Company and the Subsidiaries not to directly or indirectly solicit, initiate or knowingly encourage any inquiries or proposals from, discuss or negotiate with, provide any information to, or consider the merits of any inquiries or proposals from, any Person (aother than Buyer) From relating to any Acquisition Proposal other than a Permitted Acquisition Proposal. Parent, the date hereof Company and Seller shall, and shall cause their Affiliates, direct and indirect equity holders, and representatives to, immediately cease any such discussions or negotiations related to any Acquisition Proposal currently in progress with any Person other than Buyer and shall cease providing any such Person information regarding Parent, Seller, the Company, or any Subsidiary. As soon as reasonably practicable (and in any event within one Business Day) after receipt by Parent, Seller, the Company or any of the Subsidiaries (including through a notification by its representatives) of any Acquisition Proposal or any request for information or inquiry which it reasonably believes could lead to an Acquisition Proposal, Seller shall provide Buyer with written notice of the material terms and conditions of such Acquisition Proposal, request or inquiry, the identity of the Person making any such Acquisition Proposal, request or inquiry and a copy of such proposal, request or inquiry, if in writing (or, where such proposal, request or inquiry was not in writing, a description of the terms of such proposal, request or inquiry), and any written material submitted in connection with such proposal, request or inquiry. Notwithstanding the foregoing, until the earlier of (i) the Closing Date, or and (ii) the termination of this Agreement pursuant to Article IX (XI, neither Parent, Seller nor the Company shall enter into, or cause the Subsidiaries to enter into, any definitive agreement with respect to a Permitted Acquisition Proposal without Buyer’s prior written consent, which shall not be unreasonably withheld to the extent that such earlier date being referred to herein as transactions would not materially interfere with the “Exclusivity Termination Date”)consummation of the transactions contemplated by this Agreement or any Seller Ancillary Agreement. Without limiting any of the terms, the conditions, or rights provided for in this Agreement, Parent, Seller and Stockholders the Company acknowledge and agree that Buyer shall nothave the right to seek specific performance of the provisions of this Section 6.5 pursuant to the terms and conditions of Section 11.3(d). Each of Parent, Seller and shall not authorize or permit the Company acknowledge and agree that any violation of (A) the restrictions set forth in this Section 6.5 by any of their respective officersAffiliates, directors, officers, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect dispositionequity holders or representatives, or the Subsidiaries, or (B) Section 1.1 or 2.1 (Exclusivity), as applicable, of any Equity Holder Agreement by any Affiliate of Parent, Seller, or the Company party thereto, whether by saleor not such Person is purporting to act on behalf of Parent, merger Seller, the Company or otherwise, of all or any portion of the Business or the Purchased Assets (shall be deemed a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security6.5.
Appears in 1 contract
Exclusivity. (a) From During the date hereof until Pre-Closing Period, neither Seller nor the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders Company shall nottake, and shall not authorize authorize, knowingly encourage, permit or permit instruct any of their respective officers, directors, employees, agents, its Affiliates (and shall instruct its representatives or Affiliates toto not) take, directly or indirectly, any action to: (ia) solicit, initiateinitiate or knowingly encourage the making, encourage, facilitate submission or (to the extent within such Person’s control) permit the submission announcement of any proposal, inquiry, or offer Acquisition Proposal from any Person (other than Buyer or its Affiliates or representatives); (b) initiate, knowingly encourage, participate in or engage in any discussions, negotiations or other communications regarding an Acquisition Proposal; (c) execute, enter into or become bound by any letter of intent or other Contract with any Person (other than Buyer or its AffiliatesAffiliates or representatives) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or in connection with an Acquisition Proposal; (d) provide any portion of the Business or the Purchased Assets information to any Person (a “Competing Transaction”) other than acquisitions of the Purchased Assets Buyer or its representatives) in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or response to an Acquisition Proposal other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of than to inform such Person that the Seller and Stockholders will terminate the Company are subject to this Section 6.1(d); or (e) entertain or accept any Acquisition Proposal from, cooperate in any way with, or knowingly facilitate or encourage any effort or attempt by any Person (other than Buyer or its Affiliates or representatives) relating to an Acquisition Proposal. Each of Seller and the Company shall, and shall instruct its Affiliates and representatives to, immediately cease and cause to be terminated all discussions or existing discussions, conversations, negotiations and other communications with any Person conducted heretofore with respect to any Competing Transaction and request each Acquisition Proposal. Within five (5) Business Days following the date hereof, Seller shall, or shall cause its representatives to, instruct any such Person that has heretofore executed a confidentiality agreement to return or destroy all nonpublic information provided to such Person in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person’s consideration of any Acquisition Proposal in accordance with the confidentiality agreements entered into between Seller or its representatives and any such Person by or on behalf of(each, or with respect to, an “Existing NDA”). Each of Seller and the Seller, the Business or the Purchased Assets.
Company shall promptly (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one twenty-four (124) Business Day, hours of receipt thereof) notify Buyer orally and in writing of such inquiryany Acquisition Proposal that is received by Seller or the Company during Pre-Closing Period, proposalwhich notice shall, offerto the extent permissible under any applicable Existing NDA, or request, including include: (i) the identity of the Person making or submitting such indication of interest, inquiry, proposal, offer, offer or request, and the material terms and details conditions thereof, including ; and (ii) a complete copy of any writing (including any electronic mail) relating theretoall written materials provided in connection with such Acquisition Proposal.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From During the period from the date hereof of this Agreement until the earlier of (i) the Closing Date, or (ii) Date and the termination of this Agreement pursuant to Article IX VIII hereof (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”), the Seller and Stockholders the Company shall not, not (and shall cause the Company’s Subsidiaries not authorize to) take, or permit authorize, knowingly encourage or instruct any other Person on behalf of their respective officers, directors, employees, agents, representatives Seller or Affiliates tothe Company to take, directly or indirectly: , any action to (ia) initiate, knowingly encourage or engage in discussions or negotiations with, (b) solicit, initiateinitiate or knowingly encourage the making, encouragesubmission or announcement of any proposal by, facilitate (c) execute or enter into any letter of intent or other Contract with, (d) provide any confidential and non-public information exclusively relating to the Business to, or (to the extent within such Person’s controle) permit the submission approve or recommend a proposal by, in each case of any proposalclauses (a) through (e), inquiry, or offer from any Person (other than Buyer or Purchaser, its Affiliates and any of its Affiliatesor their respective Representatives) relating to the direct or indirect disposition, whether concerning any purchase by sale, merger or otherwise, such Person of all or any portion substantially all of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions assets of the Purchased Assets in the Ordinary Course Company Group, whether through a stock sale, merger, license, sale of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, assets or other understanding transaction (whether writteneach, oralan “Acquisition Proposal”); provided, bindinghowever, non-binding, or otherwisethat any Exempt Transaction (as defined below) regarding a Competing Transaction.
(b) shall not be considered an “Acquisition Proposal”. Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate the Company shall (and shall cause the Company’s Subsidiaries to) cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Person (other than Purchaser, its Affiliates and all discussions any of its or negotiations their respective Representatives) conducted heretofore with respect to any Competing Transaction Acquisition Proposal, including by shutting down any data room access for such Persons and request each their Representatives, and promptly after the date hereof, instruct any Person that (other than Purchaser, its Affiliates and any of its or their respective Representatives) who has heretofore executed entered into a confidentiality agreement with Seller or any of its Affiliates in connection with a Competing Transaction an Acquisition Proposal that has not expired or been terminated in accordance with its terms to return all or destroy the confidential information heretofore furnished previously provided to such Person by or on behalf of, or Persons thereunder in accordance with respect the terms of such confidentiality agreement. Seller and the Company shall (and shall cause the Company’s Subsidiaries to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives promptly notify Purchaser in writing of any inquiry, indication of interest, proposal, offer or offer relating to a Competing Transaction, or any request for information relating theretofrom any Person (other than Purchaser, such party will promptly, its Affiliates and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, its or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mailtheir respective Representatives) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunctionAcquisition Proposal that is received by the Company, specific performance or other equitable relief to prevent the breach any of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.its
Appears in 1 contract
Exclusivity. (a) From the date hereof Subject to Section 5.3(b) hereof, until the earlier to occur of (i) the Closing Date, or (ii) Date and the date of termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Section 8.1, the no Seller and Stockholders shall not, and shall not authorize or permit nor any of their respective its officers, directors, employees, agentsAffiliates, agents or other representatives or Affiliates tonor the Company (in its capacity as the sole shareholder of BHP and HCI) shall, directly or indirectly, take any of the following actions: (i) solicit, encourage, initiate, encourageentertain, facilitate accept receipt of, review or (encourage any proposals or offers from, or participate in or conduct discussions with or participate or engage in negotiations with, any Person relating to the extent within such Person’s control) permit the submission of any offer or proposal, inquiryoral, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger written or otherwise, formal or informal, with respect to the acquisition of all or any portion of the Business Harv▇▇ ▇▇▇ertainment Assets or the Purchased Assets Harv▇▇ ▇▇▇ertainment Business (including, but not limited to, any acquisition structured as a “Competing merger, consolidation, share exchange, purchase or otherwise) (in each case, a "Harv▇▇ ▇▇▇e Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business"), or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations provide information with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection Seller, any Affiliate of any Seller, the Harv▇▇ ▇▇▇ertainment Assets or the Harv▇▇ ▇▇▇ertainment Business to any Person, other than to Purchaser, relating to (or which any Seller believes would be used for the purpose of formulating an offer or proposal with a Competing Transaction to return all confidential information heretofore furnished to respect to), or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any Harv▇▇ ▇▇▇e Transaction, (iii) agree to enter into any contract, agreement or other arrangement with any Person, other than Purchaser, providing for, or approve, a Harv▇▇ ▇▇▇e Transaction, (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any Harv▇▇ ▇▇▇e Transaction other than by Purchaser, or on behalf (v) authorize or permit any of Sellers' or their Affiliates' officers, directors, employees, shareholders or other agents to take any such action. The Board of Directors of each Seller shall not fail to recommend, or withdraw, modify or change in any manner adverse to Purchaser its approval or recommendation of, this Agreement, the Acquisition or the other transactions contemplated hereby, or resolve to take any of the foregoing actions. In addition, if any Seller or any Affiliate of Sellers receives any offer or proposal (formal or informal, oral, written or otherwise) relating to, or any inquiry or contact from any Person with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Harv▇▇ ▇▇▇e Transaction, or such Seller shall immediately notify such offeror that the Company has entered into an exclusive sales agreement and cannot negotiate any request offers for information relating thereto, sale and such party will promptly, Seller shall also notify Purchaser thereof and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or requestprovide Purchaser with the details thereof, including the identity of the Person or Persons making such inquiry, offer or proposal, and shall keep Purchaser fully informed on a current basis of the status and details of any such offer or proposal. This Section 5.3(a) shall not apply to any proposals or offers from third parties with respect to (i) the sale of the capital stock or assets of PM Entertainment or its subsidiaries or (ii) the sale of the capital stock of the Company, provided that in any such sale the purchaser therein shall expressly agree to honor this Agreement, and vote in favor thereof if necessary.
(b) Nothing contained in this Section 5.3 shall prevent the Board of Directors of the Company from considering, negotiating, discussing, approving and recommending to the shareholders of the Company a bona fide Harv▇▇ ▇▇▇e Transaction not solicited in violation of this Agreement, provided that the Board of Directors of the Company determines in good faith, upon advice of outside counsel, that it is required to do so in order to discharge properly its fiduciary duties. Nothing contained in this Section 5.3 shall prohibit the Board of Directors of the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer. If the Board of Directors of the Company receives a request for material nonpublic information by a Person who makes, or requestindicates that it is considering making, an offer of a bona fide Harv▇▇ ▇▇▇e Transaction, and the terms Board of Directors determines in good faith and details thereof, including a copy upon the advice of any writing (including any electronic mail) relating thereto.
(d) Each of outside counsel that it is required to cause the Seller and Stockholders hereby acknowledges that any breach of Company to act as provided in this Section 6.11 would cause substantial 5.3(b) in order to discharge properly the directors' fiduciary duties, then, provided such Person has executed a confidentiality agreement substantially similar to the one then in effect between the Company and irreparable damage Purchaser, the Company may provide such Person with access to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent information regarding the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityCompany.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Harvey Entertainment Co)
Exclusivity. In consideration of the time, effort, expense, and other resources the Purchasers have expended and anticipate expending to consummate the transactions contemplated hereby, the Purchasers and the Company agree as follows:
(ai) From the date hereof until Until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither the “Exclusivity Termination Date”)Company nor any of its Subsidiaries shall, the Seller and Stockholders shall notdirectly or indirectly, and shall not authorize or permit through any of their respective officers, directors, employees, agentsrepresentatives, representatives agents or Affiliates tootherwise (including, directly without limitation, through any investment banker, attorney or indirectly: accountant retained by the Company or any of its Subsidiaries) (icollectively, the "Company Parties"), without the prior written consent of the Majority Purchasers, (A) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiryother proposal or offer from, or offer from otherwise enter into any other agreements or arrangements (other than this Agreement) with, any other Person (other than Buyer or any of its Affiliates) the Purchasers), relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, Alternative Transaction Proposal or (iiB) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential any information heretofore furnished to such Person by or on behalf of, or with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the Seller, the Business or the Purchased Assetsforegoing.
(cii) From As long as the date hereof through agreements in this Section 3H are in effect, the Exclusivity Termination Date, if Company will notify the Seller or Purchasers as promptly as practicable after any Stockholder receives Company Party learns that any inquiry, proposal, or offer relating to a Competing Transaction, or Person has made any request for information relating thereto, such party will promptly, and in any event within one Alternative Transaction Proposal (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the such Person making such inquiry, proposal, offer, or request, and the terms of such proposal). The Board shall promptly advise the Purchasers orally and details thereof, including a copy of any in writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect status of any such breach)Alternative Transaction Proposal as developments arise or as requested by the Purchasers. The Company represents and warrants to the Purchasers that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction Proposal and the Company will keep the Purchasers fully informed of the status and details (including amendments and proposed amendments) of any such request, without the necessity of posting a bond Alternative Transaction Proposal or other securityinquiry. The Company further represents and warrants that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Jda Software Group Inc)
Exclusivity. (a) From In consideration of the date hereof time, effort and expenses to be undertaken by Purchaser in connection with the pursuit of the transaction contemplated herein, the parties agree that the Vendor shall deal exclusively with the Purchaser, its affiliates and each of their successors and assigns from the Effective Date and until the earlier of Closing Date (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”). During the Exclusivity Period, the Seller and Stockholders Vendor shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates its Representatives to, directly or indirectly: (i) solicit, initiate, encourage, initiate or take any action with the primary intent to facilitate or (to encourage any inquiries or the extent within such Person’s control) permit the submission making of any proposal, inquiryproposal from a person or group of persons other than the Purchaser and its affiliates that may constitute, or offer from could reasonably be expected to lead to, any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, acquisition of all or any portion of the Business or the Purchased Assets (a an “Competing Alternative Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or ); (ii) furnish any information, enter into or participate in any discussions or negotiations, negotiations with any person or group of persons other than Purchaser and its affiliates regarding an Alternative Transaction; or (iii) enter into an Alternative Transaction or any Contractagreement, arrangement or understanding, including, without limitation, any letter of intent, term sheet, memorandum of understanding or other understanding similar document, relating to an Alternative Transaction. The Vendor confirms that prior to the Effective Date and in accordance with the terms of the LOI, it has caused its Representatives to terminate all pre-existing discussions or negotiations with any person or group of persons other than Purchaser and its affiliates regarding an Alternative Transaction. Nothing herein shall prohibit or otherwise prevent the Vendor from discussing, entering into or consummating a transaction for all of or a majority of, the common shares of either Vendor or all or substantially all of the assets of the Vendor (whether writteneither individually or collectively) (in either case, orala “Sale of the Vendor’s Business”), bindingprovided that (i) such Sale of the Vendor’s Business is not entered into primarily as a means to diminish, non-binding, defeat or otherwiseotherwise circumvent the exclusivity obligations of the Vendor set forth herein; and (ii) regarding a Competing Transaction.
(b) Immediately following any Sale of the execution Vendor’s Business shall be conditional upon the acquirer agreeing to be bound by the terms and conditions of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, as if the Seller or any Stockholder receives any inquiry, proposal, or offer relating acquirer was the original vendor party to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretosame.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Canopy Growth Corp)
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with its terms, the Seller and Stockholders each member of the Company Group shall not, and shall not authorize or permit any of cause their respective directors, officers, directors, employees, agentsstockholders, representatives or Affiliates and Representatives not to, and the directors, officers, employees, stockholders, and Representatives of their Affiliates not to, directly or indirectly: , (i) initiate, solicit, initiate, encourage, or knowingly facilitate or (to encourage any inquiries or the extent within such Person’s control) permit the submission making of any proposal, inquiry, proposal or offer from any Person (other than Buyer or any group of its Affiliates) relating Persons that may constitute, or would reasonably be expected to lead to, the direct or indirect disposition, whether by sale, merger or otherwise, acquisition of all or any portion part of the Business Equity Securities of any member of the Company Group or all or any part of the Purchased Assets business of any member of the Company Group, whether by merger, purchase of stock or equity interests, issuance of stock or equity interests, purchase of assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets sales in the Ordinary Course of Business), tender offer or otherwise (each, an “Alternative Transaction”), it being understood that that the acquisition of the Seller’s outstanding equity securities will not be considered an Alternative Transaction so long as the Seller remains bound by this Agreement in accordance with its terms, (ii) furnish any informationengage in, enter into, continue or otherwise participate in any discussions or negotiationsnegotiations with any Person or group of Persons (other than Buyer) with respect to, or provide any non-public information or data concerning, any member of the Company Group to any Person or group of Persons (other than Buyer) relating to any proposal, indication of interest, inquiry, request or offer that constitutes, or would reasonably be expected to result in, an Alternative Transaction, or (iii) approve, endorse, recommend or enter into any Contractacquisition agreement, purchase agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or other understanding (whether written, oral, binding, non-bindingagreement in principle, or otherwise) regarding a Competing any other agreement relating to an Alternative Transaction. The Seller shall promptly notify Buyer if any Person makes any proposal, offer or inquiry with respect to an Alternative Transaction.
(b) Immediately following From and after the execution date of this Agreement, each until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Seller will, and Stockholders will terminate cause each member of the Company Group, and its and their Affiliates and Representatives to, (i) immediately cease and cause to be terminated any existing communications, discussions, negotiations and all discussions other activities with any Person or negotiations its Representatives (other than Buyer and its Representatives) with respect to any Competing Transaction Alternative Transaction, or any inquiry, proposal, offer or indication of interest that could reasonably be expected to lead to any Alternative Transaction; (ii) immediately terminate and request each discontinue any access of any Person that has heretofore executed a confidentiality agreement and its Representatives (other than Buyer and its Representatives and the Seller and its Representatives) to any data room (virtual, physical or otherwise) or similar information-sharing platform containing any of the Seller’s or any member of the Company Group’s confidential information with respect to an Alternative Transaction; and (iii) immediately request, and use reasonable best efforts to cause, the prompt return or destruction of any confidential information previously furnished or made available to, such Persons and their Representatives through such platform or in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetspossible Alternative Transaction.
(c) From The Seller will promptly inform each member of the date hereof through Company Group, and its and their Subsidiaries, Affiliates and Representatives of the Exclusivity Termination Daterestrictions set forth in this Section 6.5. Any breach or violation of the restrictions set forth in this Section 6.5 by any Subsidiary, if Affiliate or Representative of the Seller, whether or not such Subsidiary, Affiliate or Representative is so authorized and whether or not such Subsidiary, Affiliate or Representative is purporting to act on behalf of the Seller or any Stockholder receives any inquiryotherwise, proposal, will be deemed to be a breach or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach violation of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent 6.5 by the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitySeller.
Appears in 1 contract
Sources: Equity Purchase Agreement (Xtant Medical Holdings, Inc.)
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) Until the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as Agreement, neither the “Exclusivity Termination Date”)Company, the Seller and Stockholders shall not, and shall not authorize or permit Subsidiaries nor the Shareholders nor any of their respective directors, officers, directors, employees, agents, representatives or Affiliates shareholders (collectively, the "COMPANY GROUP") shall initiate, solicit, entertain, negotiate, accept or discuss, or encourage inquiries or proposals (each, an "ACQUISITION PROPOSAL") with respect to, or furnish any information relating to or participate in any negotiations or discussions concerning, or enter into any agreement with respect to, any acquisition or purchase of all or a substantial portion of the business, assets, properties, capital stock or capital stock equivalents of the Company or any of the Subsidiaries (a "POTENTIAL SALE"), whether by merger, combination, sale of stock, sale of assets, or otherwise, or enter into any agreement, arrangement or undertaking requiring it to abandon, terminate or fail to consummate the transactions contemplated by this Agreement. The Company and the Shareholders shall, and shall cause each other member of the Company Group to, immediately cease and cause to be terminated any existing activities, including discussions or negotiations with any parties, other than Purchaser, conducted prior to the date hereof with respect to any Acquisition Proposal. The Company and the Shareholders shall (i) promptly inform Purchaser of any inquiries any member of the Company Group receives after the date hereof concerning an Acquisition Proposal or Potential Sale and provide Purchaser with copies of all correspondence or other documents received in connection therewith and (ii) inform the Persons sending such inquiries, requests or proposals that the Company is bound by an exclusivity arrangement (without any reference to Purchaser, or its potential financing sources). The Company represents that it is not a party to or bound by any agreement with respect to an Acquisition Proposal other than under this Agreement. The Company and the Subsidiaries shall cause their officers, directors, agents and advisors to comply with this SECTION 5.09.
(b) Each Shareholder further agrees that, except as contemplated by this Agreement, without the prior written consent of the Purchaser, such holder shall not, directly or indirectly: , during the term of this Agreement (i) solicitgrant or enter into any Encumbrance, initiate, encourage, facilitate power of attorney or (other agreement or arrangement with respect to the extent within voting of such Person’s control) permit the submission holder's shares of any proposalCompany Capital Stock, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any informationsell, participate in any discussions assign, transfer, encumber or negotiationsotherwise dispose of, or enter into any Contract, letter of intent, option or other arrangement or understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of any Competing Transaction and request each Person of such shares of Company Capital Stock or (iii) take any other action that has heretofore executed a confidentiality agreement would in connection any way restrict, limit or interfere with a Competing Transaction to return all confidential information heretofore furnished to the performance of such Person by or on behalf of, or with respect to, the Seller, the Business Person's obligations hereunder or the Purchased Assetstransactions contemplated hereby.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither Seller nor the “Exclusivity Termination Date”)Shareholders shall, the nor shall Seller and Stockholders shall not, and shall not authorize or permit any of their respective its officers, directors, employees, agentsaffiliates, representatives or Affiliates toagents to (including, without limitation, investment bankers, financial advisors, brokers and other advisors) (collectively, the "Representatives"), to directly or indirectly: indirectly do any of the following:
(i) solicitdiscuss, initiatenegotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction (an "Acquisition Transaction") involving any disposition or other change of ownership or control of a substantial portion of Seller's stock or assets or any assumption by Seller of substantial liabilities, including, without limitation, any joint venture or partnership involving any of the foregoing (other than the transaction contemplated in this Agreement);
(ii) facilitate, encourage, facilitate solicit or initiate or in any way engage in discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction (other than the transaction contemplated in this Agreement);
(iii) furnish or cause to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from be furnished to any Person (other than Buyer or its representatives) any information concerning the business, operations, properties or assets of Seller in connection with an Acquisition Transaction; or
(iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of its Affiliates) relating to the direct or indirect dispositionforegoing. Seller shall inform Buyer by telephone, whether by sale, merger or otherwisewithin 24 hours, of all Seller's receipt of any proposal or bid (including the terms thereof and the Person making such proposal or bid) in respect of any portion of the Business or the Purchased Assets (a “Competing Transaction”) Acquisition Transaction other than acquisitions of the Purchased Assets transaction described in the Ordinary Course of Businessthis Agreement. Seller shall, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the immediately upon execution of this Agreement, each of the Seller and Stockholders will terminate any and instruct its Representatives to cease all discussions or negotiations further activities with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by the sale of Seller or on behalf ofSeller's assets, or with respect toincluding, without limitation, the Seller, the Business or the Purchased Assetsdissemination of information.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From In recognition of the time and expense incurred to date and to be hereafter incurred by Purchaser in connection with the proposed transactions contemplated herein, SSI/DE agrees that, from the date hereof until to the earlier of (i) the Closing DateInitial Closing, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders it shall notrefrain from, and shall not authorize or permit cause its Subsidiaries to refrain from, and shall cause any of their respective directors, officers, directors, employees, agentsagents and other representatives to refrain from, representatives soliciting, entertaining, discussing, negotiating, considering or Affiliates toproviding confidential or proprietary information in connection with any offer, directly proposal or indirectly: (i) solicit, initiate, encourage, facilitate or (other inquiry from any other party with respect to the extent within such Person’s control) permit purchase, issuance or sale of the submission capital stock or assets of any proposal, inquiry, or offer from any Person (other than Buyer either SSI/DE or any of its Affiliates) relating Subsidiaries, in whole or in part, or with respect to any merger, consolidation, reorganization, recapitalization or other similar transaction involving SSI/DE or any of its Subsidiaries, without the prior written consent of Purchaser. SSI/DE shall immediately notify Purchaser of any communication or other contact from or with any other party regarding any such offer, proposal or other inquiry. Notwithstanding the foregoing, in the event of and to the direct or indirect dispositionextent required by the fiduciary obligations of SSI/DE's Board of Directors, whether as determined in good faith by salesuch Board of Directors on the basis of a written opinion of outside legal counsel, merger or otherwise, of all if either SSI/DE or any portion of its Subsidiaries receives a proposal that has not been solicited by any of them or any director, officer, employee, agent or other representative thereof, with respect to a Control Transaction (as hereinafter defined), SSI/DE or its Subsidiaries may participate in such discussions or negotiations or furnish (pursuant to a confidentiality agreement in customary form) confidential or proprietary information in response to such proposal; provided, however, that in the event that SSI/DE or any of its Subsidiaries consummates a Control Transaction with any person or entity (other than Purchaser or its affiliates) at any time on or prior to the expiration of the Business one-year period following the date hereof, either SSI/DE or one of its Subsidiaries shall immediately pay to Purchaser the Purchased Assets (a “Competing Transaction”) other than acquisitions sum of $500,000 in cash as compensation for the time, effort and expense incurred by Purchaser to date and to be hereafter incurred by Purchaser in connection with the transactions contemplated herein and for the loss of opportunity suffered by Purchaser on account of the Purchased Assets in the Ordinary Course consummation of Business, a Control Transaction by either SSI/DE or (ii) furnish any information, participate in of its Subsidiaries with any discussions other person or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution entity. For purposes of this Agreement, each "Control Transaction" means any transaction that involves a (i) merger, consolidation, reorganization, recapitalization or other similar business combination involving either SSI/DE or any of its Subsidiaries; (ii) sale of all or substantially all of the Seller and Stockholders assets of either SSI/DE or any of its Subsidiaries; or (iii) sale or issuance of common stock or other equity securities by either SSI/DE or any of its Subsidiaries to a person which, following such sale or issuance, will terminate beneficially own the common stock or other equity securities of either SSI/DE or any and all discussions or negotiations of its Subsidiaries representing a majority of the voting power with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, election of the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller directors of either SSI/DE or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoits Subsidiaries.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Sound Source Interactive Inc /De/)
Exclusivity. (a) From and after the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with its terms, the Seller and Stockholders shall not, and shall not authorize or knowingly permit any of its Subsidiaries or any of its or their respective officers, directors, employees, agents, representatives or Affiliates Representatives to, directly or indirectly: (ia) solicit, initiate, encourage, or take any action to knowingly facilitate or (to knowingly encourage any inquiries or the extent within such Person’s control) permit the submission making of any proposal, inquiry, proposal from a Person or offer from any Person group of Persons (other than Buyer or any of and its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessthat may constitute, or would reasonably be expected to lead to, an Acquisition Proposal; (iib) furnish any information, enter into or participate in any discussions or negotiationsnegotiations with any Person or group of Persons (other than Buyer and its Affiliates) regarding any Acquisition Proposal; (c) furnish any non-public information with respect to, or afford access to any Person or group of Persons (other than Buyer and its Representatives) to, the assets, business, properties, books or records of Seller or any of its Subsidiaries related to the Business, any Program, any Products or any Transferred Asset, in all cases, for the purpose of assisting with or knowingly facilitating any Acquisition Proposal; or (d) enter into any Contractagreement, arrangement, or understanding, including any letter of intent, term sheet, or other understanding (whether writtensimilar document, oralrelating to any Acquisition Proposal. As of the date hereof, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, Seller and each of the Seller its Subsidiaries shall immediately cease and Stockholders will terminate cause to be terminated all existing discussions, conversations, negotiations, and other communications with any Persons other than Buyer and all discussions or negotiations its Affiliates and their respective Representatives conducted heretofore with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person Acquisition Proposal. Upon the receipt by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives of its -44- Subsidiaries of any inquiry, inquiry or proposal, oral or offer relating to written, regarding any Acquisition Proposal involving a Competing TransactionThird Party, or any request for information relating thereto, such party will promptly, and Seller shall promptly notify Buyer in writing (but in any event within one [***] and provide Buyer with an oral and written description (1) Business Daysetting forth, notify Buyer in writing of such inquirythe price, proposal, offer, or request, including the identity of the Person making such inquiryThird Party and other material terms) of any Acquisition Proposal. For clarity, proposal, offer, or requestthe Parties acknowledge and agree that nothing in this Agreement shall restrict any actions by Seller and its Subsidiaries, and the terms and details thereoftheir respective Representatives, including with respect to any merger or business combination involving Seller or any acquisition or purchase by a copy Third Party of any writing (including any electronic mail) relating theretooutstanding or newly issued equity securities of Seller.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From As an inducement to the date hereof Purchaser to enter into this Agreement, and in consideration of the time and expense which it has devoted and will devote to the transactions contemplated hereby during such period, except as between the Sellers and the Purchaser pursuant to this Agreement, until the earlier of (i) the Closing Date, or Date and (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with Section 14.1 hereof, each of the “Exclusivity Termination Date”), Sellers and the Seller and Stockholders Guarantor shall not, and, to the extent permitted by the FTC Orders, shall cause the Companies and shall not authorize or permit any of the Operating Company and their respective Affiliates, officers, directors, employees, agentsagents and representatives (including any investment banker, representatives attorney or Affiliates accountant retained or acting on behalf of such party or any shareholder, director, officer or employee of such party) not to, directly or indirectly: indirectly (ix) initiate, solicit, initiateencourage or entertain proposals, encourageinquiries, facilitate or (to the extent within such Person’s control) permit the submission indications of any proposal, inquiryinterest, or offer from any Person (other than Buyer or any of its Affiliates) relating offers to the direct or indirect disposition, whether by sale, merger or otherwise, of all or purchase any portion of the Business Purchased Equity Interests or all or substantially all of the Bulk Assets or the Purchased Assets Bulk Gas Business (a an “Competing TransactionAcquisition Proposal”), or (y) other than acquisitions of enter into any discussions, negotiations, agreements, arrangements or commitments with respect an Acquisition Proposal with any Person who has made an Acquisition Proposal; provided, however, that the Purchased Assets foregoing shall not restrict the Sellers, the Companies, the Operating Company or the Guarantor from dispositions in the Ordinary Course of Business, Business of Bulk Inventory and of Bulk Equipment that is obsolete or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter unusable condition and not necessary for the operation of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transactionthe Bulk Gas Business substantially as currently conducted.
(b) Immediately following Except as otherwise agreed between the execution Purchaser and the Sellers, until the earlier of (i) the Closing Date and (ii) termination of this AgreementAgreement in accordance with Section 14.1 hereof, each the Purchaser shall not, and the Purchaser shall cause its Affiliates, officers, directors, employees, agents and representatives (including any investment banker, attorney or accountant retained or acting on behalf of the Seller and Stockholders will terminate Purchaser or any and all discussions shareholder, director, officer or negotiations employee of the Purchaser) not to directly or indirectly initiate, solicit, encourage or entertain any opportunity to acquire any assets or any business which compete with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Bulk Gas Business or the Purchased Assetspurchase of which by the Purchaser could reasonably be expected to materially impair the Purchaser’s ability to (A) consummate the transactions contemplated hereby under applicable antitrust Law and the FTC Orders, or (B) obtain the Financing.
(c) From This Section 6.9 supersedes the date hereof through exclusivity covenant to which each party is subject contained in Section A.3 of the Exclusivity Termination DateFramework Agreement and each party shall have no further obligation to the other party in connection with such exclusivity covenant; provided, however, if this Agreement is terminated by the Seller Purchaser (x) as a result of a material breach of this Agreement by either party or (y) under Section 14.1(d) or Section 14.1(e), then any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request claims either party may have for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial such exclusivity covenant shall not be waived and irreparable damage to Buyer for which money damages would shall be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityretained.
Appears in 1 contract
Exclusivity. Except with respect to this Agreement and the transactions contemplated hereby, neither the Company, nor its Subsidiary nor the Stockholders and none of their affiliates shall, and each of them shall cause its 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) From the date hereof until the earlier of (i) the Closing Dateinitiate, solicit or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toseek, directly or indirectly: (i) solicit, initiate, encourage, facilitate any inquiries or (to the extent within such Person’s control) permit the submission making or implementation of any proposal, inquiry, proposal or offer from (including, without limitation, any Person (other than Buyer proposal or offer to its shareholders or any of its Affiliatesthem) relating with respect to the direct a merger, acquisition, consolidation, recapitalization, liquidation, dissolution or indirect dispositionsimilar transaction involving, whether by sale, merger or otherwise, any purchase of all or any portion of the Business assets or any equity securities of, the Purchased Assets Company or its Subsidiary (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Businessany such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or (iib) furnish any information, participate engage in any discussions or negotiationsnegotiations concerning, or enter into provide any Contract, letter of intentconfidential information or data to, or other understanding (whether writtenhave any substantive discussions with, oralany person relating to an Acquisition Proposal, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Dateotherwise cooperate in any effort or attempt to make, if the Seller implement or any Stockholder receives any inquiry, proposalaccept an Acquisition Proposal, or offer (d) enter into or consummate any agreement or understanding with any person or entity relating to a Competing Transactionan Acquisition Proposal, except for the Merger contemplated hereby. If the Company, its Subsidiary or Stockholder, or any of their respective Agents, have provided any person or entity (other than UniCapital) with any confidential information or data relating to an Acquisition Proposal, then they shall request for the immediate return thereof. The Company, its Subsidiary and the Stockholders shall notify UniCapital immediately if any inquiries, proposals or offers related to an Acquisition Proposal are received by, any confidential information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offeror data is requested from, or requestany negotiations or discussions related to an Acquisition Proposal are sought to be initiated or continued with, including it or any individual or entity referred to in the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach first sentence of this Section 6.11 would cause substantial and irreparable damage 8.10. The covenant contained in this Section 8.10 shall not survive any termination of this Agreement pursuant to Buyer for which money damages would be an inadequate remedy andSections 13.1, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance 13.2 or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security13.3.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Exclusivity. (a) From The Seller agrees that, commencing on the date hereof of this Agreement and until the earlier of (i) the Closing Date, or (ii) the termination of date on which this Agreement pursuant to Article IX has been terminated by its terms (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”), the Buyer shall have the exclusive right to consummate the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the Seller and Stockholders shall notagrees that, and unless this Agreement is terminated by its terms, the Seller shall not authorize (and the Seller shall not cause or permit any of their respective officersAffiliate, directorsInsider, employees, agents, representatives agent or Affiliates representative or any other Person acting on its behalf to), directly or indirectly: , through any officer, director, shareholder, member, partner, Affiliate, employee, agent, investment banker, attorney, accountant or other representative or otherwise, (i) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiry, proposal or offer (an “Acquisition Proposal”) from any Person (other than Buyer or including any of its officers, directors, partners, members, shareholders, Affiliates, employees, agents and other representatives) relating to the any direct or indirect disposition, whether by sale, merger or otherwiseconsolidation with or into, or acquisition or purchase of all or any portion of the Business Shares of, or the Purchased Assets any material asset of, or any capital stock or other Equity Interest of, any Acquired Company or any other similar business combination involving any Acquired Company (a “Competing Transaction”) other than acquisitions of the Purchased Assets in transactions with the Ordinary Course of BusinessBuyer contemplated hereby), or (ii) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into furnish to any Contract, letter of intentother Person any information with respect to, or other understanding (whether written, oral, binding, non-bindingotherwise cooperate in any way with, or otherwise) regarding a Competing Transactionassist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the foregoing.
(b) Immediately following the execution of Nothing contained in this Agreement, each of Section 5.6 shall prohibit the Seller and Stockholders will terminate its board of directors (the “Seller Board”) and officers from furnishing information, including nonpublic information, to, or entering into negotiations with, any Person that has indicated its willingness to make an unsolicited bona fide Acquisition Proposal if, and all only to the extent that:
(i) such interest in making an unsolicited bona fide Acquisition Proposal is made by a third party that the Seller Board determines in good faith has the good faith intent to proceed with negotiations to consider, and the financial capability to consummate, such Acquisition Proposal;
(ii) the Seller Board, after duly consulting with the Seller’s outside counsel, determines in good faith that such action is necessary for the Seller Board to comply with its fiduciary duties imposed by applicable law;
(iii) contemporaneously with furnishing such information to, or entering into discussions with, such Person, the Seller enters into a customary confidentiality agreement with such Person;
(iv) contemporaneously with furnishing such information to, or entering into discussions or negotiations with respect with, such Person, the Seller provides written notice to any Competing Transaction and request each Person the Buyer to the effect that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential it is furnishing information heretofore furnished to such Person by or on behalf ofto, or with respect toentering into discussions or negotiations with, the Seller, the Business or the Purchased Assets.such Person; and
(cv) From the date hereof through the Exclusivity Termination Date, if the Seller uses all reasonable efforts to keep the Buyer informed in all material respects of the status and terms of any such negotiations or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one discussions (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making with whom such inquiry, proposal, offer, discussions or request, negotiations are being held) and provides the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach copies of such obligations (written proposals and any amendments or revisions thereto or correspondence related thereto; provided, that the Buyer agrees to execute a confidentiality agreement, in addition form reasonably acceptable to all other rights and remedies it, with respect to which Buyer may be entitled in respect of any such breachinformation delivered to the Buyer pursuant to this clause (v), without which confidentiality agreement shall be subject to the necessity of posting a bond Buyer’s disclosure obligations arising under applicable law or other securitysecurities exchange regulations.
Appears in 1 contract
Sources: Interest and Stock Purchase Agreement (Healthtronics, Inc.)
Exclusivity. (a) From the date hereof until the earlier earliest of (ia) the Closing Date, Date or (iib) the termination of such date on which this Agreement pursuant to is validly terminated in accordance with Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)X, the Seller Sellers and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Subsidiaries and Affiliates towill not, directly or indirectly: indirectly (i) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit accept the submission of any proposal, inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion acquisition of the Business Sellers, their respective Subsidiaries, the CIR III Properties or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, CIR III Shares or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) negotiations regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each acquisition of the Seller Sellers, their respective Subsidiaries, the CIR III Properties or the CIR III Shares or furnish any confidential or proprietary information with respect thereto to any Person who would reasonably be expected to submit any proposal or offer relating to the acquisition of the Sellers, their respective Subsidiaries, the CIR III Properties or the CIR III Shares (other than the Buyer or its authorized Representatives). The Sellers and Stockholders their respective Subsidiaries and Affiliates will terminate promptly cease any and all existing discussions or negotiations with any Persons (other than the Buyer and its authorized Representatives) heretofore conducted, or the provision of any confidential or proprietary information to any Person (other than the Buyer or its authorized Representatives) to which confidential or proprietary information heretofore has been provided, in each case, with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by discussions or on behalf ofnegotiations regarding the acquisition of the Sellers, their respective Subsidiaries, the CIR III Properties or the CIR III Shares. The Seller shall promptly notify the Buyer upon receipt of any bid, offer or proposal it receives with respect toto the Sellers, the Sellertheir respective Subsidiaries, the Business their respective properties or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller CIR III Shares or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including other transaction inconsistent with the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretotransactions contemplated by this Agreement.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Seller shall, and shall direct its officers, directors, employees, agents, Affiliates, investment bankers, attorneys and other advisors and representatives to, immediately cease any existing discussions or negotiations, if any, with any parties with respect to any purchase or acquisition of all or a material portion of the date hereof until assets related to the Business (each, an “Acquisition Transaction”). Seller agrees that, prior to the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders it shall not, and shall not authorize or permit any of their respective its officers, directors, employees, agentsrepresentatives, representatives or Affiliates toagents and Affiliates, directly or indirectly: (i) indirectly to, solicit, initiate, initiate or encourage, facilitate or (to furnish or disclose information in furtherance of, any inquiries or the extent within such Person’s control) permit the submission making of any proposalproposal with respect to any Acquisition Transaction or negotiate, inquiry, explore or offer from otherwise engage in discussions with any Person (other than Buyer or with respect to any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, Acquisition Transaction or enter into any Contractagreement, letter arrangement or understanding requiring it to abandon, terminate or fail to consummate any of intentthe transactions contemplated by the Transaction Documents. Without limiting the foregoing, any violation of the restrictions set forth in this Section 7.1.8 by any officer, director, employee, agent, Affiliate, investment banker, attorney or other understanding (whether written, oral, binding, non-binding, advisor or otherwise) regarding representative of Seller shall be deemed to be a Competing Transactionbreach of this Section 7.1.8 by Seller.
(b) Immediately following From and after the execution of this Agreement, each Seller shall promptly (i) advise Buyer in writing of the Seller receipt, directly or indirectly, of any inquiry, proposal or other materials, and Stockholders will terminate of any discussions, negotiations or proposals relating to, an Acquisition Transaction, (ii) identify the offeror, and (iii) provide Buyer copies of all discussions proposed written agreements, arrangements, or negotiations understandings with respect to any Competing Acquisition Transaction (and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or description of any proposed oral agreements with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the thereto). Seller or any Stockholder receives any inquiry, proposal, or offer shall promptly advise Buyer of all material developments relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond inquiry or other securityproposal.
Appears in 1 contract
Exclusivity. (a) From Between the date hereof until of this Agreement and the earlier of (ia) the Closing Date, or and (iib) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders shall not, and shall not authorize or permit any of their cause the Acquired Companies and its respective Affiliates, officers, directors, employees, agentsmanagers, representatives (in their capacity as such) or Affiliates agents (in their capacity as such) not to, directly or indirectly: (i) solicit, initiate, encourageconsider, facilitate encourage or (to the extent within such Person’s control) permit the submission of accept any proposal, inquiry, other proposals or offer offers from any Person (other than Buyer or any of its AffiliatesA) relating to the direct any acquisition or indirect dispositionpurchase, whether by sale, merger directly or otherwiseindirectly, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions Capital Stock of any of the Purchased Assets Acquired Companies or any ownership interest in any of the Acquired Companies or any substantial assets of the Acquired Companies (excluding sales of assets in the Ordinary Course of Business), (B) initiate or consummate any merger, liquidation, consolidation or other business combination with Seller or any of the Acquired Companies or (C) enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to Seller or any of the Acquired Companies or (ii) furnish any information, participate in any discussions or negotiationsdiscussions, conversations, negotiations and other communications regarding, or enter into furnish to any Contract, letter of intentother 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 understanding Person to seek to do any of the foregoing; provided, however, that transactions with Buyer or its Affiliates and the transactions contemplated by Section 5.17 (whether written, oral, binding, non-binding, or otherwiseRedemption of Lantana Preferred Stock) regarding a Competing Transaction.
(b) Immediately following the execution hereof shall not be violations of this AgreementSection 5.7. Seller shall, each of the Seller and Stockholders will terminate shall cause its Affiliates, officers, directors, managers, representatives (in their capacity as such) and agents (in their capacity as such) to immediately cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any and all discussions or negotiations Persons conducted heretofore with respect to any Competing Transaction of the foregoing. Seller shall not, and request each shall cause its Affiliates not to, release any Person that has heretofore executed from, or waive any provision of, any confidentiality or standstill agreement to which Seller or any of its Affiliates is a confidentiality agreement party entered into in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity proposed acquisition of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoAcquired Companies.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissancere Holdings LTD)
Exclusivity. During the period between January 20, 2016 and ending on the earlier of Closing Date or the Termination Date, except with respect to this Agreement and the transactions contemplated hereby, the Company agrees that it will not, and it will cause the Company’s Subsidiaries and the Company’s and its 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) From the date hereof until the earlier of (i) the Closing Dateinitiate, encourage, solicit or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toseek, directly or indirectly: , any inquiries or the making or implementation of any proposal or offer (iincluding, without limitation, any proposal or offer to its shareholders or any of them) solicitwith respect to a merger, initiateacquisition, encourageconsolidation, recapitalization, liquidation, dissolution, equity investment or similar transaction involving, or any purchase of all or any substantial portion of the assets or any securities of, the Company or any of its Subsidiaries (any such proposal or 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 any Person relating to a Proposal. If the extent within such Person’s control) permit the submission Company, any of its Subsidiaries or any proposal, inquiry, or offer from 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 immediate return thereof. The Company shall 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 Affiliates or, to its Affiliates) relating to the direct or indirect dispositionKnowledge, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Agent. Such notice shall disclose the identity of the Person making such inquiry, proposal, offer, or requestparty making, and the terms and details thereofconditions of, including any such Proposal, inquiry or request, and shall include a true and complete copy of any writing (including any electronic mail) relating theretosuch Proposal, inquiry or request, if in writing.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Exclusivity. (a) From Each of the Shareholders, PFMI, the Company and the Subsidiaries agrees that, commencing on the date hereof of this Agreement and until the earlier of (i) the Closing Date, or (ii) the termination of date on which this Agreement pursuant to Article IX has been terminated by its terms (such earlier date being referred to herein as the “"Exclusivity Termination Date”Period"), Buyer shall have the Seller exclusive right to consummate the transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, each of the Shareholders, PFMI, the Company and Stockholders the Subsidiaries agrees that, unless this Agreement is terminated by its terms, none of PFMI, the Company, any Subsidiary or any Shareholder shall not(and none of PFMI, and the Company, any Subsidiary or any Shareholder shall not authorize cause or permit any Affiliate, agent or representative or any other Person acting on their behalf to), directly or indirectly, through any officer, director, shareholder, partner, Affiliate, employee, agent, investment banker, attorney, accountant or other representative or otherwise, (a) solicit, initiate or encourage the submission of their respective any proposal or offer (an "Acquisition Proposal") from any Person (including any of its officers, directors, partners, shareholders, Affiliates, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (agents and other than Buyer or any of its Affiliatesrepresentatives) relating to the direct or indirect dispositionany liquidation, whether by saledissolution, recapitalization of, merger or otherwiseconsolidation with or into, or acquisition or purchase of all or any portion of the Business capital stock of, or the Purchased Assets any material asset of (a “Competing Transaction”) other than acquisitions sales of inventory in the ordinary course of business), or all or substantially all of the Purchased Assets in assets of, or any capital stock or other equity security of, any of PFMI, the Ordinary Course Company or any of Businessits Subsidiaries or any other similar transactions or business combination involving any of PFMI, the Company or any of its Subsidiaries (other than the transactions contemplated by the Asset Distribution Letter Agreement), or (iib) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential any information heretofore furnished to such Person by or on behalf of, or with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the Seller, the Business or the Purchased Assetsforegoing.
(c) From Each of the date hereof through Shareholders, PFMI, the Company and the Subsidiaries represents that it has suspended (and has caused its officers, directors, shareholders, partners, Affiliates, employees, agents, investment bankers, attorneys, accountants or other representatives to suspend), and shall cease for the duration of the Exclusivity Termination DatePeriod, all contacts, discussions and negotiations with third parties (other than Buyer and its Affiliates, agents and representatives) regarding any Acquisition Proposal. Each of the Shareholders, PFMI, the Company and the Subsidiaries shall promptly notify Buyer if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transactionsuch Acquisition Proposal, or any request for information relating thereto, such party will promptly, and in inquiry or contact with any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing with respect thereto (including any electronic mail) relating Person with whom any Shareholder, PFMI or the Company or any Subsidiary has already had such discussions), is made and shall provide reasonable detail regarding the nature of such proposal, inquiry or contact and such Shareholder's, PFMI's or the Company's or any Subsidiaries' response thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof until the earlier of Closing (the “Exclusivity Period”), no Seller or Principal shall (i) the Closing Dateauthorize, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize direct or permit any of its or their respective officers, directors, employees, agents, representatives Representatives or Affiliates to, to take any action to directly or indirectly: (i) indirectly solicit, initiate, seek, encourage, facilitate facilitate, approve, endorse, recommend or (respond to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction(whether formal or informal, written, oral or otherwise) from, or participate in any request discussions or negotiations with, any third party regarding any (A) direct or indirect acquisition or sale of any Seller in whole or in part, (B) merger, consolidation, reorganization, recapitalization, liquidation, dissolution or other business combination or extraordinary corporate transaction involving any Seller, (C) acquisition, disposition, or listing on any securities exchange of any portion of the membership interests or voting power of any Seller (whether by sale, assignment, issuance, proxy, pledge, encumbrance or otherwise, other than the issuance of membership interests of any Seller upon exercise or conversion of options, warrants or other equity-based securities issued prior to the date of this Agreement), (D) acquisition or disposition of any material asset or material portion of the assets of any Seller (whether by sale, assignment, option, license, pledge, encumbrance or otherwise, other than bona fide sales and nonexclusive licenses of products in the Ordinary Course of Business) (any such transaction described in clauses (A), (B), (C) or (D) of this Section 7.3(a)(i), a “Third Party Acquisition”); (ii) furnish any non-public information concerning the business, properties or assets of any Seller or division of any Seller to any other Person (other than the Purchaser or its Representatives); or (iii) engage in discussions or negotiations with any Person (other than the Purchaser and its Representatives) concerning any Third Party Acquisition. Each Seller agrees that any such discussions or negotiations in progress as of the date of this Agreement shall be immediately terminated and that in no event shall any Seller approve, accept or enter into an agreement concerning any Third Party Acquisition during the Exclusivity Period. During the Exclusivity Period, no Seller or Principal shall authorize, direct or cause any of their respective Representative or Affiliates to continue or participate in any negotiations or discussions with any Person for information relating theretothe purpose of effecting an acquisition, joint venture with or strategic investment in any other Person or business. 4306983-11
(b) Each Seller shall immediately notify any Person with whom or with which discussions or negotiations of the nature described in Section 7.3(a) are pending as of the date hereof that such Seller is terminating such discussions or negotiations. If any Seller receives any inquiry, proposal or offer of the nature described in Section 7.3(a), such party will promptlySeller shall, and in any event within one (1) Business Dayday after such receipt, notify Buyer in writing the Purchaser of such inquiry, proposal, proposal or offer, or request, including the identity of the Person making other party and the terms of such inquiry, proposal, proposal or offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(dc) Each of Seller agrees that the Seller rights and Stockholders hereby acknowledges remedies for noncompliance with this Section 7.3 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach of this Section 6.11 would or threatened breach shall cause substantial irreparable injury to the Purchaser and irreparable damage to Buyer for which that money damages would be not provide an inadequate adequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityPurchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Exclusivity. (a) From the date hereof until the earlier of (i) this Agreement through the Closing Date, Date or (ii) the date of termination of this Agreement pursuant to Article IX Section 10.1 (such earlier date being referred to herein as the “Exclusivity Termination Date”whichever first occurs), the Seller Company, its Subsidiary, and Stockholders each Shareholder shall not, and shall not authorize or permit any of their respective cause the officers, directors, managers, employees, consultants, advisors, representatives, agents, representatives or lenders, and Affiliates (collectively “Agents”) of the Company and each Shareholder (including the Subsidiary of the Company) not to, directly or indirectly: (i) , discuss, pursue, solicit, initiateinitiate or otherwise enter into or engage in any discussions, encourageagreements or other arrangements regarding, facilitate a possible sale or other disposition (to the extent within such Person’s control) permit the submission of any proposalwhether by sale, inquirymerger, share exchange, reorganization, recapitalization, share issuance, exclusive license, or offer from otherwise) of all or any of the share capital or assets of the Company or any Subsidiary of the Company with any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets Affiliates (a an “Competing TransactionAcquisition Proposal”) or provide any information to any third party other than acquisitions of the Purchased Assets information which has traditionally been provided in the Ordinary Course of BusinessBusiness of the Company and its Subsidiary to third parties where none of the Company or its Affiliates or any of their respective Agents have reason to believe that such information may be utilized to Table of Contents evaluate any such Acquisition Proposal or other possible sale or disposition. The Company, its Subsidiary, and each Shareholder shall, and shall cause the their respective Agents to, (i) immediately cease and cause to be terminated any and all contacts, discussions and negotiations with third parties regarding any Acquisition Proposal or other possible sale or disposition of the Company or any Subsidiary of the Company, and (ii) furnish promptly (within two (2) Business Days) notify Buyer if any information, participate in any discussions or negotiationsAcquisition Proposal, or enter into any Contract, letter of intent, inquiry or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate contact with any and all discussions or negotiations Person with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf ofthereto, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From is subsequently made after the date hereof through and the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one material terms thereof (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, third party or request, third parties and the specific material terms and details thereof, including a copy of any writing (including any electronic mail) relating theretodiscussed or proposed).
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof until Until the earlier of (i) the Closing Date, (ii) the Outside Date (or such other date as the Outside Date may be extended beyond August 31, 2002 by Buyer pursuant to Section 3.1), (iii) the Termination Date, and (iv) the date that the Break Up Fee is paid to Buyer:
(A) Neither the Seller nor the Shareholder will, directly or indirectly, through any of their representatives, agents, employees, contractors, directors, shareholders, principals or otherwise (collectively the "REPRESENTATIVES") solicit or entertain offers from, negotiate with or in any manner encourage, discuss, accept or consider any proposal of any other person relating to the acquisition of the Seller, its assets or business, in whole or in part, whether directly or indirectly, through purchase, merger, consolidation or otherwise (other than sales of inventory in the ordinary course). Notwithstanding the above, the parties understand and acknowledge that this Agreement will be submitted by Shareholder to the Shareholder Bankruptcy Court for approval, and in connection with that approval, Shareholder may be required by contract or Applicable Law to notify third parties of the proposed Acquisition, in which case such notification shall be provided only to the parties set forth on SCHEDULE 13.1 or as otherwise directed by the Shareholder Bankruptcy Court. Subject to approval from the Shareholder Bankruptcy Court, Shareholder shall set forth the manner in which notice is delivered, the content of the notices, and the procedures to follow in connection with any responses from any of the notified parties as described in SCHEDULE 13.1. Seller and Shareholder shall be permitted to respond to requests for information in accordance with the procedures as shall be approved by the Shareholder Bankruptcy Court; and
(B) Until the earlier of the (i) Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if either the Seller or the Shareholder will, as the case may be, immediately notify Buyer regarding any Stockholder receives contact between any inquiry, proposal, Representative and any other person regarding any such offer or offer relating to a Competing Transaction, proposal or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such related inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall notshall, and shall not authorize or permit any of their respective direct and use its reasonable best efforts to cause its Affiliates and its and its Affiliates’ directors, officers, directors, employees, agents, and representatives or Affiliates to(including without limitation any investment banker, directly or indirectly: (i) solicitfinancial advisor, initiateattorney, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiryaccountant, or offer from any Person (other than Buyer representative retained by Seller or any of its Affiliates) to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations with any person other than Purchaser and its Affiliates with respect to the possibility, consideration, or consummation of any sale or other disposition of any of the Branches or any of the Assets or the Liabilities. Seller shall not, and shall direct and use its reasonable best efforts to cause its Affiliates and its and its Affiliates’ directors, officers, employees, agents, and representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other representative retained by Seller or any of its Affiliates) not to, directly or indirectly through another person, (a) solicit, initiate, or encourage (including by way of furnishing information or assistance), or take any other action to facilitate or that could result in, any inquiries, or discussions regarding, or the making of any proposal or offer for, any sale or other disposition of any of the Branches or any of the Assets or the Liabilities; (b) provide any non-public information or data regarding the Branches or the Assets or the Liabilities to any person other than Purchaser relating to or in connection with any sale or other disposition of any of the direct or indirect disposition, whether by sale, merger or otherwise, of all Branches or any portion of the Business Assets or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessLiabilities, or any inquiry or indication of interest with respect thereto; or (iic) furnish any information, continue or participate in any discussions or negotiations, or enter into otherwise communicate in any Contractway with any person other than Purchaser and its Affiliates, letter of intent, regarding any sale or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution disposition of this Agreement, each any of the Seller and Stockholders will terminate Branches or any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, of the Seller, the Business Assets or the Purchased Assets.
Liabilities. Seller shall promptly (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and but in any event within one (1not more than 24 hours) Business Day, notify Buyer advise Purchaser orally and in writing of such its receipt of any inquiry, proposal, offer, or requestindication of interest, including the identity or any request for information, relating to any sale or other disposition of any of the Person making such inquiry, proposal, offer, Branches or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Assets or the Liabilities. Seller and Stockholders hereby acknowledges expressly agrees that any breach or violation of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and6.22 by any of its Affiliates or by any of its or its Affiliates’ directors, accordinglyofficers, acknowledges and agrees that Buyer will be entitled to an injunctionemployees, specific performance agents, or representatives (including without limitation any investment banker, financial advisor, attorney, accountant, or other equitable relief to prevent the representative retained by such Party or any of its Subsidiaries) shall be deemed a breach or violation of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitythis Section 6.22 by Seller.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Atlantic Capital Bancshares, Inc.)
Exclusivity. During the Interim Period, except with respect to this Agreement and the transactions contemplated hereby, the Company and the Stockholders agree that they will not, and they will cause the Company’s Subsidiaries and the Company’s and its Subsidiaries’ respective directors, officers, employees, Affiliates and other agents and representatives (including any investment banking, lending, financing, 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) From the date hereof until the earlier of (i) the Closing Dateinitiate, encourage, solicit or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toseek, directly or indirectly: , any inquiries or the making or implementation of any proposal or offer (iincluding any proposal or offer to its stockholders or any of them) solicitwith respect to a merger, initiateacquisition, encourageconsolidation, recapitalization, liquidation, dissolution, equity investment or similar transaction involving, or any purchase of all or any substantial portion of the assets or any securities of, the Company or any of its Subsidiaries (any such proposal or 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 any Person relating to a Proposal. If the extent within such Person’s control) permit the submission Company, any of its Subsidiaries or any proposal, inquiry, or offer from 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 immediate return thereof. The Company shall 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 Affiliates or, to its Affiliates) relating to the direct or indirect dispositionKnowledge, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Agent. Such notice shall disclose the identity of the Person making such inquiry, proposal, offer, or requestparty making, and the terms and details thereofconditions of, including any such Proposal, inquiry or request, and shall include a true and complete copy of any writing (including any electronic mail) relating theretosuch Proposal, inquiry or request, if in writing.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof until through the earlier Closing Date:
(a) Seller and each of its Affiliates shall cease any discussions or negotiations with any third party regarding (i) any merger, sale of assets not in the Closing Dateordinary course of business, acquisition, business combination, change of control, bulk reinsurance transaction or other similar transaction involving any Transferred Company or any Subsidiary of any Transferred Company, (ii) any purchase or other acquisition by any Person of any shares of the termination capital stock of this Agreement pursuant to Article IX any Transferred Company or any Subsidiary of any Transferred Company, or 51 57 (such earlier date being referred to herein as the “Exclusivity Termination Date”iii) any sale or issuance by any Transferred Company or any Subsidiary of any Transferred Company of any shares of its capital stock (collectively, "Prohibited Transactions");
(b) None of Seller, the Seller and Stockholders Transferred Companies or any of their Subsidiaries shall, nor shall not, and shall not any of them authorize or permit any of their respective directors, officers, directors, employees, agentsrepresentatives, representatives agents or Affiliates to, directly or indirectly: (i) , solicit, initiate, encourage, facilitate respond favorably to, permit or (to the extent within such Person’s control) permit the submission of any proposal, inquirycondone inquiries or proposals from, or offer from provide any confidential information to, or participate in any discussions or negotiations with, any Person (other than Buyer or any of and its Affiliatesdirectors, officers, employees, representatives and agents) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (concerning a “Competing Prohibited Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.;
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptlyshall promptly advise Buyer of, and in any event within one communicate to Buyer the terms and conditions of (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including but not the identity of the Person making such inquirymaking), proposal, offer, any bona fide inquiry or request, and the terms and details thereof, including proposal received concerning a copy of any writing (including any electronic mail) relating thereto.Prohibited Transaction; and
(d) Each Seller shall use its best efforts to enforce the terms of any confidentiality or standstill agreements with third parties relating to any Transferred Company or any Subsidiary of any Transferred Company or any of the Seller business, assets or employees of any of the foregoing and Stockholders hereby acknowledges that to require any breach such third party to return any confidential information regarding any of this Section 6.11 would cause substantial the foregoing which they may have obtained pursuant to any such agreement. All of Seller's rights in and irreparable damage to such confidentiality and standstill agreements shall be assigned to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent upon the breach occurrence of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityClosing.
Appears in 1 contract
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither Seller nor the “Exclusivity Termination Date”)Shareholder shall, the nor shall Seller and Stockholders shall not, and shall not authorize or permit any of their respective its officers, directors, employees, agentsaffiliates, representatives or Affiliates toagents to (including, without limitation, investment bankers, financial advisors, attorneys, brokers and other advisors) (collectively, the "REPRESENTATIVES"), directly or indirectly: indirectly do any of the following:
(i) solicitdiscuss, initiatenegotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction (an "ACQUISITION TRANSACTION") involving any disposition or other change of ownership or control of a substantial portion of Seller's stock or assets or any assumption by Seller of substantial liabilities, including, without limitation, any joint venture or partnership involving any of the foregoing (other than the transaction contemplated in this Agreement);
(ii) facilitate, encourage, facilitate solicit or initiate or in any way engage in discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction (other than the transaction contemplated in this Agreement);
(iii) furnish or cause to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from be furnished to any Person (other than Buyer or its representatives) any information concerning the business, operations, properties or assets of Seller in connection with an Acquisition Transaction; or
(iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of its Affiliates) relating to the direct or indirect dispositionforegoing. Seller shall inform Buyer by telephone, whether by sale, merger or otherwisewithin 24 hours, of all Seller's receipt of any proposal or bid (including the terms thereof and the Person making such proposal or bid) in respect of any portion of the Business or the Purchased Assets (a “Competing Transaction”) Acquisition Transaction other than acquisitions of the Purchased Assets transaction described in the Ordinary Course of Businessthis Agreement. Seller shall, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the immediately upon execution of this Agreement, each of the Seller and Stockholders will terminate any and instruct its Representatives to cease all discussions or negotiations further activities with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by the sale of Seller or on behalf ofSeller's assets, or with respect toincluding, without limitation, the Seller, the Business or the Purchased Assetsdissemination of information.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From During the date hereof until the earlier of (i) the Pre-Closing DatePeriod, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and Seller shall not permit any of its Affiliates or authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates Representatives to, directly or indirectly: indirectly through another Person, (i) solicit, initiateinitiate or knowingly encourage, encourageor take any other action designed to, or that would reasonably be expected to, facilitate or (to the extent within such Person’s control) permit the submission of lead to, any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or Transaction Proposal; (ii) furnish any informationenter into, continue or otherwise participate in any discussions or negotiationsnegotiations with, or furnish to or disclose any information regarding the Compound or any Product to, or otherwise cooperate in any way with, any Person in connection with (or that would reasonably be expected to facilitate or lead to) any Transaction Proposal; provided, that any correspondence required to comply with the requirements of the following sentence shall not be considered a breach of the obligations set forth in this clause (ii); or (iii) enter into any Contract, letter of intent, agreement in principle, acquisition agreement, option agreement or other understanding similar agreement relating to a Transaction Proposal. Seller shall, shall cause its Affiliates, and shall direct their respective Representatives to, (whether written, oral, binding, non-binding, A) immediately cease and cause to be terminated all existing discussions or otherwisenegotiations with any Person conducted heretofore with respect to any potential Transaction Proposal and (B) regarding promptly after the date hereof cause to be terminated all access to any electronic data room relating to any potential Transaction Proposal. The taking of any action by any Person covered by Section 7.4(a) that violates the restrictions set forth in this Section 7.4(a) shall be deemed to be a Competing Transactionbreach of this Section 7.4(a) by Seller.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the If Seller or any Stockholder of its Affiliates or Representatives receives any inquiry, proposal, Transaction Proposal or offer relating inquiry that would reasonably be expected to lead to a Competing TransactionTransaction Proposal, or any request for information relating theretoSeller shall, such party will promptlyshall cause its Affiliates, and shall direct their respective Representatives to, in any event within one (1) Business Dayeach case, notify promptly advise Buyer orally and in writing of such inquiry, proposal, offer, or request, including Transaction Proposal and the identity of the Person making any such Transaction Proposal or any such inquiry, proposal, offer, or request. Seller shall not, and the terms and details thereofit shall not permit any of its Affiliates or Representatives on behalf of Seller to, including enter into any agreement with a copy of any writing (including any electronic mail) relating theretoThird Party that prevents Seller from complying with its obligations under this Section 7.4.
(dc) Each During the period between ▇▇▇▇▇’s exercise of the Option and the Closing, unless otherwise approved by Buyer, Seller shall not and Stockholders hereby acknowledges that Seller shall not permit any breach of this Section 6.11 would cause substantial and irreparable damage its Affiliates or authorize any of their respective Representatives to, directly or indirectly through another Person, effect or enter into an agreement with respect to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityLiquidation Event. [***].
Appears in 1 contract
Sources: Option and Asset Purchase Agreement (Fusion Pharmaceuticals Inc.)
Exclusivity. (a) From During the date hereof until Interim Period, the earlier Company shall not take, nor shall the Company permit any of its Affiliates or Representatives to take, whether directly or indirectly, (i) the Closing Dateany action to solicit, initiate or engage in discussions or negotiations with, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)enter into any agreement with, the Seller and Stockholders shall notor encourage, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates provide information to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer SPAC or any of its AffiliatesAffiliates or Representatives) relating to the direct or indirect disposition, whether by sale, concerning any merger or otherwise, similar business combination transaction or sale of substantially all or any portion of the Business assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the Purchased Assets ordinary course of business) (a each such acquisition transaction, but excluding the Transactions, an “Competing Acquisition Transaction”) ); provided, that the execution, delivery and performance of this Agreement and the other than acquisitions Transaction Agreements and the consummation of the Purchased Assets in the Ordinary Course Transactions shall not be deemed a violation of Business, this Section 9.03(a) or (ii) furnish any informationaction in connection with a public offering of any Equity Securities of the Company or any of its Subsidiaries (or any Affiliate or successor of the Company or any of its Subsidiaries). The Company shall, participate in and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiationsnegotiations with any Person conducted prior to the date hereof with respect to, or enter into any Contractwhich is reasonably likely to give rise to or result in, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing an Acquisition Transaction.
(b) Immediately following During the execution Interim Period, SPAC shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders or any of their respective Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination involving SPAC (a “Alternate Business Combination Proposal”) other than with the Company, its stockholders and their respective Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement, each Agreement and the other Transaction Agreements and the consummation of the Seller Transactions shall not be deemed a violation of this Section 9.03(b). SPAC shall, and Stockholders will terminate shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with respect any Person conducted prior to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or the date hereof with respect to, the Selleror which is reasonably likely to give rise to or result in, the an Alternate Business or the Purchased AssetsCombination Proposal.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Subject to the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of terms and conditions set forth below in this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Section 6.9 and in Section 6.14, the Seller Company will be the exclusive vehicle for the Shareholders to pursue the Restricted Business in the Territory. Each of the Shareholders hereby covenants to and Stockholders shall not, and shall not authorize or permit with the other Shareholders that neither they nor any of their respective officers, directors, employees, agents, representatives Affiliates which they control will do any one or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion more of the Business or the Purchased Assets following:
(a “Competing Transaction”a) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contractnegotiations, letter discussions, deliberations, agreements or arrangements of intentany nature whatsoever with any third party to either directly or indirectly carry on or be engaged or interested in a Restricted Business or be directly or indirectly engaged, concerned or other understanding (interested whether writtenon its own account or as a member, oralshareholder, bindingconsultant, non-bindingagent, beneficiary, trustee or otherwise) regarding a Competing Transaction.otherwise in any enterprise, corporation, firm, trust, joint venture or syndicate which is engaged, concerned or interested in or carrying on any Restricted Business;
(b) Immediately following on its own account or for any person, enterprise, firm, trust, joint venture or syndicate directly or indirectly entice (or attempt to entice) away from the execution Company any Restricted Business of this Agreement, each any customer of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.Company;
(c) From on its own account or for any person, enterprise, firm, trust, joint venture or syndicate directly or indirectly entice (or attempt to entice) away from the date hereof through Company any supplier to the Exclusivity Termination Date, if Company to the Seller or extent related to any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.Restricted Business;
(d) Each of on its own account or for any person, enterprise, firm, trust, joint venture or syndicate directly or indirectly entice (or attempt to entice) away from the Seller and Stockholders hereby acknowledges that Company any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy andemployee, accordinglyofficer, acknowledges and agrees that Buyer will be entitled to an injunctionagent consultant, specific performance advisor, or any individual who is employed by the Company in any capacity whatsoever. As used herein, "entice" means contact or communicate in any manner whatsoever, including, but not limited to, contacts or communications by or through intermediaries, agents, contractors, representatives, or other equitable relief Shareholders, provided, however, that nothing herein shall be construed to prevent prohibit the breach of such obligations Shareholders from (a) placing advertisements for employment which are aimed at the public at large in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach)newspaper, without the necessity of posting a bond trade magazine, or other security.periodical in general
Appears in 1 contract
Exclusivity. (a) From the date hereof until of this Agreement through the earlier of (i) the Closing Date, or (ii) and the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, Seller agrees that no member of the “Exclusivity Termination Date”)Company Group, the Seller and Stockholders shall not, and shall not authorize or permit any of its Subsidiaries, nor Seller, nor shall any member of the Company Group, any of its Subsidiaries, nor Seller permit their respective officerscontrolling persons, directorsequityholders, employees, agentsofficers, board directors, Affiliates, advisors, agents or other representatives to: (a) encourage, initiate, solicit, entertain, negotiate, facilitate, discuss, accept, approve, endorse or Affiliates agree to, directly or indirectly: , any proposal or offer (a “Proposal”) by a Third Party (other than Acquiror or any other Person Acquiror designates) regarding (i) solicit, initiate, encourage, facilitate the sale or (to the extent within such Person’s control) permit the submission license of all or any material assets of any proposal, inquiry, or offer from any Person (other than Buyer member of the Company Group or any of its Affiliates) relating Subsidiaries (other than the sale of obsolete assets in the ordinary course of business consistent with past practice or with respect to the direct Restructuring (including with respect to Meridian Iowa)) or indirect disposition(ii) any sale of Equity Equivalents, whether by salemerger, merger business combination, joint venture, consolidation, public offering, recapitalization, refinancing or otherwise, other similar transaction involving any member of all the Company Group or any portion of its Subsidiaries, excluding, for the Business avoidance of doubt, transfers amongst direct equityholders of Seller or transfers by direct equityholders of Seller to any trust or other estate planning vehicle, the Purchased Assets sole beneficiaries of which are such current equityholder’s spouse or lineal descendants (the transactions referred to in clause (i) or (ii) above, each a “Competing Transaction”), (b) provide any information regarding any member of the Company Group or any of its Subsidiaries (including this Agreement and any other materials containing Acquiror’s or its Affiliates’ proposal) to any Person who has made or would reasonably be expected to make a Proposal regarding a Competing Transaction (other than acquisitions of the Purchased Assets in the Ordinary Course of Business, to Acquiror or its representatives and agents and any other Person designated by Acquiror) or (iic) furnish any information, participate in any discussions or negotiations, or enter into any ContractCompeting Transaction or any agreement, memorandum of understanding or letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following intent relating thereto. Each member of the execution of this AgreementCompany Group, each of the its Subsidiaries, Seller and Stockholders will terminate each of their respective controlling persons, equityholders, employees, officers, board directors, Affiliates, advisors, agents or other representatives, as applicable, shall immediately cease and cause to be terminated any and all previously undertaken or ongoing activities, discussions or negotiations with any other Person with respect to any Competing Transaction (other than with Acquiror or its representatives and request each agents and any other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
Acquiror designates). Seller shall (cA) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, promptly (and in any event within one two (12) Business DayDays) notify Acquiror if it, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity any member of the Person making such inquiryCompany Group or any of their controlling persons, proposalequityholders, offerboard directors, officers or requestAffiliates or, and to the terms and details thereofKnowledge of Seller, including a copy any of any writing (including any electronic mail) relating thereto.
(d) Each of its advisors, agents or other representatives, as applicable, receives after the Seller and Stockholders hereby acknowledges that any breach date of this Section 6.11 would cause substantial and irreparable damage to Buyer Agreement, any Proposal regarding a Competing Transaction or any indications of interest or requests for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled information in respect of such Proposal and (B) promptly (and in any event within five (5) Business Days) request in writing that all Persons who have or could be expected to make a Proposal regarding a Competing Transaction and to whom nonpublic information concerning any member of the Company Group or any of its Subsidiaries has been distributed on or prior to the date of this Agreement destroy or return such breach)information to any member of the Company Group as soon as possible (and, without if applicable under contractual arrangements between any Company Group or any of its Subsidiaries and such Persons, certify as to the necessity destruction of posting a bond such information) and immediately cause any Third Party (other than Acquiror or its representatives and agents and any other securityPerson Acquiror designates) to cease to have any access to the Data Room or any similar data site.
Appears in 1 contract
Sources: Transaction Agreement (Wellcare Health Plans, Inc.)
Exclusivity. (a) From The Owner and the Company agree that from the date hereof of this Agreement until the earlier of of: (i) when this Agreement is terminated under the Closing Dateterms hereof, or (ii) the termination of this Agreement pursuant to Article IX Closing (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”), ; neither the Seller and Stockholders shall not, and shall not authorize or permit Company nor any of their respective officers, directors, employees, agents, representatives agents or Affiliates toshall, directly or indirectly: (iA) enter into any written or oral agreement or understanding with any Person (other than the Purchaser) regarding the sale (whether by sale of stock, merger, consolidation, sale of assets or other disposition) of all or any part of the Company or any material portion of their respective assets or any issued or any unissued capital stock (“Another Transaction”); (B) enter into or continue any negotiations or discussion with any Person (other than the Purchaser) regarding the possibility of Another Transaction; (C) except as otherwise required by Law, order of a Governmental Authority or similar compulsion, provide any nonpublic financial or other confidential or proprietary information regarding the Company (including this Agreement and any materials containing the Purchaser’s proposal) to any Person (other than the Purchaser and its representatives); (D) except as required by Law or as may be necessary to comply with the terms and provisions of this Agreement, identify the Purchaser as an acquirer of the Company, or disclose the existence of or any information related to this Agreement or the Transactions contemplated hereby; or (E) solicit, initiate, encourage, facilitate or encourage (including by way of providing information regarding the Company or the Business to the extent within such any Person or providing access to any Person’s control) permit the submission of any proposal, inquiry, proposal or offer from any Person (other than Buyer or relating to Another Transaction, and the Company shall cause its directors, officers, employees, agents, representatives and Affiliates to refrain from any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transactionforegoing.
(b) Immediately following The Company shall notify the execution Purchaser promptly, but in any event within twenty-four (24) hours, orally and in writing upon learning of this Agreement, each of the Seller and Stockholders will terminate or receiving any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, proposal or offer relating to a Competing Another Transaction, or any request for information relating thereto, . Any such party will promptly, and notice to the Purchaser shall indicate in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including reasonable detail the identity (to the extent not prohibited by the terms of any confidentiality agreement existing on the date of this Agreement) of the Person making such inquiry, proposal, proposal or offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach conditions of such obligations (in addition to all other rights and remedies inquiry, proposal or offer. No Company shall release any Person from, or waive any provision of, any confidentiality or standstill agreement to which Buyer may be entitled in respect of any such breach)the Company is a party, without the necessity prior written consent of posting a bond or other securitythe Purchaser (which shall not be unreasonably delayed).
Appears in 1 contract
Sources: Asset Purchase Agreement (First Watch Restaurant Group, Inc.)
Exclusivity. (a) From the date hereof until the earlier of (i) The Seller will not (and will cause each of its Affiliates and, to the Closing Dateextent it has the Legal Right, or each Company Joint Venture Entity not to) (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), and the Seller and Stockholders shall not, and shall its Affiliates will not authorize or permit any director, officer, agent or representative thereof to and the Seller, to the extent it has the Legal Right, will not permit any director, officer, agent or representative of their respective officersany Company Joint Venture Entity, directorsto)
(A) enter into any agreements, employeesunderstandings or negotiations with, agentsor solicit, representatives initiate or Affiliates toencourage any inquiries, proposals or offers from, any Person other than the Buyer relating to any acquisition or purchase (directly or indirectly: , including through any lease, contract, equity sale (i) solicit, initiate, encourage, facilitate including a merger or (to the extent within such Person’s other change of control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion ) of the Business or the Purchased Assets any portion thereof (a “Competing Transaction”) other than acquisitions the types of dispositions covered by Section 5(c)(i) that do not require the Purchased Assets in the Ordinary Course of Business, Buyer’s consent) or (iiB) furnish any information, participate in any discussions or negotiationsnegotiations regarding, furnish any data or information with respect to, assist or participate in, or enter into facilitate in any Contractother manner any effort or attempt by any Person to do or seek any of the foregoing. The Seller will (and will cause each of its Affiliates and, letter to the extent it has the Legal Right, each Company Joint Venture Entity to) use Commercially Reasonable Efforts to cause its financial advisors and other representatives not to do any of intentthe foregoing.
(ii) The Seller will promptly notify the Buyer if any Person makes any proposal, offer, inquiry or other understanding contact with respect to any of the foregoing (whether writtenby telephone, oralpersonal conversation, bindingfax, non-binding, email or otherwise) regarding a Competing Transactionafter the date of this Agreement until the Closing Date or earlier termination of this Agreement, and shall specify in such notice the terms of any such proposal, offer, inquiry or contact.
(biii) Immediately following The Seller represents, warrants, and covenants that, except as contemplated hereby, (A) there are no pending agreements or understandings with respect to the sale or exchange of the Business or any portions thereof (directly or indirectly) (other than sales of inventory or immaterial portions of any Business Assets in the ordinary course), and (B) immediately upon the execution of this Agreement, each of the Seller and Stockholders will terminate all pending negotiations or discussions with any and all discussions or negotiations other Persons with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer thereto will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityterminated.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Exclusivity. (a) From During the date hereof until Interim Period, the earlier Company shall not take, nor shall the Company permit any of its Affiliates or Representatives to take, whether directly or indirectly, (i) the Closing Dateany action to solicit, initiate or engage in discussions or negotiations with, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)enter into any agreement with, the Seller and Stockholders shall notor encourage, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates provide information to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer SPAC or any of its AffiliatesAffiliates or Representatives) relating to the direct or indirect disposition, whether by sale, concerning any merger or otherwise, similar business combination transaction or sale of substantially all or any portion of the Business assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the Purchased Assets ordinary course of business) (a each such acquisition transaction, but excluding the Transactions, an “Competing Acquisition Transaction”) ); provided, that the execution, delivery and performance of this Agreement and the other than acquisitions Transaction Agreements and the consummation of the Purchased Assets in the Ordinary Course Transactions shall not be deemed a violation of Business, this Section 8.03(a) or (ii) furnish any informationaction in connection with a public offering of any Equity Securities of the Company or any of its Subsidiaries (or any Affiliate or successor of the Company or any of its Subsidiaries). The Company shall, participate in and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiationsnegotiations with any Person conducted prior to the date hereof with respect to, or enter into any Contractwhich is reasonably likely to give rise to or result in, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing an Acquisition Transaction.
(b) Immediately following During the execution Interim Period, SPAC shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders or any of their respective Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination involving SPAC (a “Alternate Business Combination Proposal”) other than with the Company, its stockholders and their respective Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement, each Agreement and the other Transaction Agreements and the consummation of the Seller Transactions shall not be deemed a violation of this Section 8.03(b). SPAC shall, and Stockholders will terminate shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with respect any Person conducted prior to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or the date hereof with respect to, the Selleror which is reasonably likely to give rise to or result in, the an Alternate Business or the Purchased AssetsCombination Proposal.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From the date hereof until of this Agreement to completion of the earlier of (i) the Closing Date, Transaction or (ii) the termination of this Agreement pursuant to Article IX in accordance with its terms, Iberian will deal exclusively with PTQ in connection with the Transaction and will not (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall will not authorize or permit any of their respective officers, directors, employees, agents, representatives its Affiliates or Affiliates Representatives to), directly or indirectly: , make, solicit, initiate or encourage enquiries from, or the submission of proposals or offers from, or continue any existing solicitations, discussions, negotiations, encouragement or activity with, any other person, corporation, partnership or other business organization whatsoever (including any of its officers, employees or agents) relating, directly or indirectly, to (i) solicit, initiate, encourage, facilitate any acquisition or (to purchase of all or a substantial part of the extent within such Person’s control) permit the submission issued shares of any proposal, inquiry, or offer from any Person (other than Buyer Iberian or any of its Affiliatesthe Iberian Subsidiaries, (ii) any acquisition or purchase of unissued shares of Iberian or any of the Iberian Subsidiaries, (iii) any acquisition or purchase of all or a material portion of the assets of Iberian or any of the Iberian Subsidiaries, including any of the material assets relating to the direct Mining Rights, (iv) any merger, amalgamation or indirect disposition, whether by sale, merger or otherwise, of all other business combination involving Iberian or any portion of the Business Iberian Subsidiaries with or the Purchased Assets into any other person, corporation, partnership or other business organization, (a “Competing Transaction”v) other than acquisitions any liquidation, dissolution or recapitalization involving Iberian or any of the Purchased Assets in the Ordinary Course of BusinessIberian Subsidiaries, or (iivi) furnish any informationother similar transaction, or participate in any discussions or negotiationsnegotiations regarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential other person any information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or otherwise co-operate in any Stockholder receives any inquiry, proposalway with, or offer relating assist or participate in, facilitate or encourage, any effort or attempt by any other person, directly or indirectly, to a Competing Transaction, do or seek to do any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoforegoing.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From and after the date hereof until through the earlier of date which is thirty (i30) the Closing Date, or (ii) days following the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as Section 11 hereof, without the “Exclusivity Termination Date”)prior written consent of Aspec, neither SIS, the Seller and Stockholders shall not, and shall not authorize or permit Majority Shareholders nor any of their respective SIS's other officers, directors, employeesshareholders, agents, representatives agents or Affiliates toshall, directly or indirectly: , (ia) solicit, initiateconduct discussions with or engage in negotiations with any person, encourageother than Aspec, facilitate or (relating to the extent within such Person’s control) permit the submission possible acquisition of any proposal, inquiry, or offer from any Person (other than Buyer SIS or any of its Affiliatessubsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (b) provide information with respect to SIS or any of its subsidiaries to any person, other than Aspec, relating to the direct possible acquisition of SIS or indirect disposition, any of its subsidiaries (whether by saleway of merger, merger purchase of capital stock, purchase of assets or otherwise, of all ) or any material portion of the Business its or the Purchased Assets their capital stock or assets, (a “Competing Transaction”c) enter into an agreement with any person, other than acquisitions Aspec, providing for the acquisition of the Purchased Assets SIS or any of its subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets, (d) make or authorize any statement, recommendation or solicitation in support of any possible acquisition of SIS or any of it subsidiaries (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its or their capital stock or assets by any person, other than by Aspec, (e) unless otherwise agreed to by Aspec, enter into any agreement with any person, other than Aspec, providing for any extension of credit (other than trade credit in the Ordinary Course ordinary course of Businessbusiness) or other debt investment in SIS, or (iif) furnish any informationunless otherwise agreed to by Aspec, participate in any discussions or negotiations, or enter into any Contractadditional agreement for the licensing or distribution of products, letter of intenttechnology, or other understanding (intellectual property of SIS, whether writtennow existing or hereafter created. In addition to the foregoing, oral, binding, non-binding, if SIS or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution any of this Agreement, each its subsidiaries receives any unsolicited offer or proposal to enter negotiations relating to any of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf ofabove, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, SIS shall immediately notify Buyer in writing of such inquiry, proposal, offer, or requestAspec thereof, including information as to the identity of the Person offeror or the party making any such inquiry, offer or proposal and the specific terms of such offer or proposal, offer, or request, as the case may be. From and after the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each date hereof until the first to occur of the Seller and Stockholders hereby acknowledges that any breach Closing of the Merger or the termination of this Agreement pursuant to Section 6.11 would cause substantial and irreparable damage 11 hereof, none of the Majority Shareholders will transfer or offer to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled transfer any of their SIS Common Stock except to an injunction, specific performance or other equitable relief Aspec pursuant to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityMerger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aspec Technology Inc)
Exclusivity. (a) From the date hereof until the earlier of (ia) the Closing Date, or Date and (iib) the termination of such date on which this Agreement pursuant to terminates in accordance with Article IX (such earlier date being referred to herein as 12, each of the “Exclusivity Termination Date”), the Sellers and Seller and Stockholders Parent shall not, and shall cause their respective Affiliates and their respective officers, directors, and employees not authorize or to, and none of them will permit any of their respective representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage the submission of any proposal or offer from any Person, or enter into any contract or agreement, relating to the direct or indirect acquisition of the Shares or the Business or (ii) participate in any discussions or negotiations regarding such an acquisition of the Business or the Shares or furnish or cause to be furnished any confidential or proprietary information with respect thereto to any Person (in each case, other than Buyer and its representatives). Seller Parent, Sellers and their respective Affiliates and their respective officers, directors, employees, agentsand representatives will promptly cease any such existing activities, representatives discussions or Affiliates tonegotiations with any Persons (other than Buyer and its representatives) heretofore conducted, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission provision of any proposal, inquiry, confidential or offer from proprietary information to any Person (other than Buyer and its representatives) to which confidential or any of its Affiliates) relating to the direct or indirect dispositionproprietary information heretofore has been provided, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement direct or indirect acquisition of the Shares or the Business. Notwithstanding anything to the contrary contained in connection with a Competing Transaction this Section 5.06, the restrictions set forth in this Section 5.06 on indirect acquisitions shall not in any way limit Seller Parent’s ability to return all confidential information heretofore furnished to such Person by or on behalf ofenter into, or with respect tocause to be entered into, a transaction subject to the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, rights and in any event within one (1) Business Day, notify obligations of Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, under this Agreement and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any Ancillary Agreements. Any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would 5.06 by any representative of Sellers, Seller Parent or any of their respective Affiliates shall be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the deemed a breach of such obligations (in addition to all other rights this Section 5.06 by Seller Parent and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitySellers.
Appears in 1 contract
Exclusivity. (a) From During the period from the date hereof of this Agreement until the Closing Date or the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to, and in accordance with, Section 9.1, except for with respect to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Buyer or its Affiliates and Representatives, neither the Seller and Stockholders shall not, and shall not authorize or permit any of its Affiliates or their respective officers, directors, employees, agents, representatives or Affiliates toRepresentatives shall, directly or indirectly: ; (ia) solicit, initiate, encourage, assist in, or take any action to facilitate or (to the extent within such Person’s control) permit encourage the submission of any proposalindication of interest, inquiry, proposal, offer or request for information from any Person that may constitute, or could reasonably be expected to lead to, any Business Combination, (b) pursue or enter into or participate in any discussions, negotiations or other communications with any Person regarding any Business Combination, (c) furnish any information or data to any Person for the purpose of assisting with or facilitating any Business Combination, (d) otherwise assist or facilitate the making of, or cooperate in any way regarding, any proposal or offer by any Person, (e) approve or accept any indication of interest, inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessPerson, or (iif) furnish any information, participate in any discussions or negotiations, or enter into any ContractBusiness Combination or any agreement, arrangement or understanding, including, without limitation, any letter of intent, term sheet or other understanding (whether writtensimilar document, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect relating to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, Business Combination. To the extent the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller its Affiliates or any Stockholder of their Representatives, directly or indirectly, receives any oral or written indication of interest, inquiry, proposal, offer or offer relating to a Competing Transaction, or any request for information relating theretoto or in connection with, such party will promptlyany Business Combination (the “Alternative Proposal”), and in any event within one (1) Business Day, the Seller shall promptly notify the Buyer in writing of the existence of such inquirycontact or communication, proposal, offer, or request, including communicate to the identity of the Person making such inquiry, proposal, offer, or request, and Buyer in reasonable detail the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach)Alternative Proposal, without and thereafter keep the necessity Buyer reasonably informed on a current basis of posting a bond any modification with respect thereto and shall not take any steps to pursue or other securityencourage any such Alternative Proposal; provided, that if any terms of the Alternative Proposal are subject to confidentiality obligations, prior to receipt of the Alternative Proposal, the Seller shall advise the Buyer as to which terms of the Alternative Proposal are confidential and the Buyer shall treat such terms as confidential.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atara Biotherapeutics, Inc.)
Exclusivity. (a) From During the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Interim Period, the Seller and Stockholders shall not, and Company shall not authorize or take, nor shall it permit any of their respective officersits controlled affiliates or direct any of its Representatives to take, directors, employees, agents, representatives or Affiliates to, whether directly or indirectly: (i) , any action to solicit, initiate, encourage, facilitate continue or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets engage in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiationsnegotiations with, or enter into any Contract, letter of intentagreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other understanding than Apex, its stockholders or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any merger, initial public offering, sale of ownership interests or assets (whether writtenother than asset sales in the ordinary course of business) of the Company, oralrecapitalization or similar transaction, bindingin each case other than (i) the Transactions or (ii) any purchase of shares of Apex Common Stock in any Private Placement (a “Company Business Combination Proposal”) other than with Apex, non-bindingits stockholders and their respective affiliates and Representatives or the PIPE Investors with respect to the Private Placement. In addition, the Company shall, and shall cause its controlled affiliates to, and shall cause their respective Representatives to, immediately cease any and all existing discussions or otherwise) regarding a Competing Transactionnegotiations with any person with respect to any Company Business Combination Proposal.
(b) Immediately following During the execution Interim Period, Apex shall not, nor shall Apex permit any of this Agreementits controlled affiliates or direct any of its Representatives to, solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders or any of their affiliates or Representatives), concerning any merger, purchase of ownership interests or assets of Apex, recapitalization or similar business combination transaction or any other Business Combination, in each case, other than (i) the Transactions or (ii) any purchase of the Seller shares of Apex Common Stock in any Private Placement (an “Apex Business Combination Proposal”). In addition, Apex shall, and Stockholders will terminate shall cause its controlled affiliates to, and shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Apex Business or the Purchased AssetsCombination Proposal.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Business Combination Agreement (Apex Technology Acquisition Corp)
Exclusivity. (a) From Each Acquired Company and each Seller, on behalf of themselves and their respective Affiliates, agree that, during the date hereof until the earlier of (i) the Closing Date, or (ii) the termination pendency of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the Seller and Stockholders shall not, and shall not authorize or permit neither they nor any of their respective officers, directors, employees, stockholders, partners, members, agents, financial advisors, consultants, attorneys, accountants, representatives or Affiliates toother advisors will, directly or indirectly: indirectly (i) solicit, initiate, encouragefacilitate, facilitate or encourage (including by way of furnishing any information relating to the extent within such Person’s controlAcquired Companies or the Purchased Assets or the Acquired Businesses) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating Acquisition Proposal with respect to the direct or indirect dispositionAcquired Companies, whether by sale, merger or otherwise, of all or any portion of the Business or the and/or Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets than, with respect to Inventory, in the Ordinary Course ordinary course of Business, business) or accept any such Acquisition Proposal; (ii) furnish any information, participate in any discussions discussions, negotiations or negotiationsother communications (as a sender thereof) regarding, or furnish to any Person any information with respect to, or take any other action to knowingly facilitate or encourage any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, or otherwise knowingly cooperate in any way, knowingly assist or knowingly participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other Person to seek to do any of the foregoing; or (iii) enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) agreement with respect to any Acquisition Proposal. Immediately following the execution and delivery of this Agreement, each of the Seller shall, and each Seller and Stockholders will terminate each Acquired Company shall cause its and its Subsidiaries’ respective officers, directors, employees, partners, members, agents, financial advisors, consultants, attorneys, accountants, representatives or other advisors to, cease and cause to be terminated all existing discussions, negotiations and other communications with any and all discussions or negotiations Persons conducted heretofore with respect to any Competing Transaction Acquisition Proposal. The Acquired Companies and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf ofSeller shall, or with respect to, the Seller, the Business or the Purchased Assets.
as promptly as practicable (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one two (12) Business Daydays after such party obtains knowledge thereof), notify Buyer in writing of such inquiry, proposal, offer, Parent if any other bona fide proposals or requestoffers for any Acquired Company or any Purchased Assets or any Acquired Business are made, including the identity terms and conditions of such inquiry or proposal (unless such disclosure is prohibited by a confidentiality agreement executed prior to the Person making such inquiry, proposal, offerdate hereof). Neither any Acquired Company nor any Seller shall release any third party from, or requestwaive any provision of, and the terms and details thereof, including any confidentiality or standstill agreement to which it is a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled party pertaining to an injunction, specific performance Acquired Company or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without Purchased Assets or the necessity of posting a bond or other securityAcquired Businesses.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Tilray Brands, Inc.)
Exclusivity. (a) From the date hereof of this Agreement until the earlier Closing or termination under ARTICLE X, the Company and the officers, directors, managers, employees, members, stockholders, representatives, agents, investment bankers and Affiliates of the Company, including the Affiliated Practices (collectively, the “Representatives”), agree not to, directly or indirectly, pursue, solicit, initiate, facilitate, encourage, continue inquiries, provide information or otherwise enter into any agreements, discussions or negotiations or other arrangements regarding or which could lead to, a possible sale or other disposition (whether by merger, reorganization, recapitalization, liquidation or otherwise) of all or any part of the Equity Interests or any significant portion of the assets of any Company Entity with any other Person other than Buyer or its Affiliates (an “Acquisition Proposal”) or provide any information to any Person other than Buyer and its Affiliates, representatives, agents and lenders other than as required by Law or information which is traditionally provided in the regular course of the Company Entities’ business operations to third parties. Sellers shall immediately cease and cause to be terminated, and shall cause its Affiliates (including the Company and the Affiliated Practices) and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons (other than Buyer and its representatives) conducted heretofore with respect to, or that could lead to, an Acquisition Proposal.
(b) Promptly following the date of this Agreement, Sellers’ Representative will, or will cause the Company and its Affiliates to, request that (i) all Evaluation Material (as defined in the Closing Date, Confidentiality Agreement) previously disclosed to any other Person in connection with the sale process of the Company be destroyed or returned to Sellers’ Representative; (ii) all notes, abstracts and other documents that contain Confidential Information be destroyed; and (iii) the receiving party of such Confidential Information provide Sellers’ Representative a written certification of an officer of the receiving party that the foregoing clauses (i) and (ii) have been satisfied.
(c) In addition to the other obligations under this Section 5.4, during the period from the date hereof through the Closing Date or the earlier termination of this Agreement pursuant to Article IX ARTICLE X, Sellers shall promptly (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one three (13) Business DayDays after receipt thereof by Sellers, notify the Company or their Representatives) advise Buyer orally and in writing of any Acquisition Proposal, including any request for information with respect to any Acquisition Proposal, or any inquiry with respect to an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, proposal, offer, or request, including and the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretosame.
(d) Each of Sellers agree that the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer for noncompliance with this Section 5.4 may be entitled in respect of include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach), without the necessity of posting a bond or other securitybreach may cause irreparable injury to Buyer and that money damages may not provide an adequate remedy to Buyer.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (U S Physical Therapy Inc /Nv)
Exclusivity. (a) From Between the date hereof until and the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as and the “Exclusivity Termination Closing Date”), the Seller and Stockholders shall not, and shall Company will not authorize or (nor will the Company permit any of their respective its officers, directors, employees, agents, representatives or Affiliates to), directly or indirectly, take any of the following actions with any Person other than Parent and Merger Sub: (i) solicit, initiate, encourage, facilitate entertain or (to the extent within such Person’s control) permit the submission of encourage any proposal, inquiryproposals or offers from, or offer from conduct discussions with or engage in negotiations with any Person relating to any possible acquisition of the Company (whether by way of merger, purchase of capital stock, purchase of assets or otherwise), any portion of its capital stock or any other than Buyer equity interest in the Company or any of its AffiliatesSubsidiaries or any material part of its or any of its Subsidiaries’ (tangible or intangible) assets; (ii) provide information with respect to it or its Subsidiaries to any Person, other than Parent and Merger Sub, relating to to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible acquisition of the direct or indirect disposition, Company (whether by saleway of merger, merger purchase of capital stock, purchase of assets or otherwise), of all or any portion of the Business its capital stock or the Purchased Assets (a “Competing Transaction”) any other than acquisitions of the Purchased Assets equity interest in the Ordinary Course Company or any of Business, its Subsidiaries or any material part of its or any of its Subsidiaries’ (tangible or intangible) assets; or (iiiii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter agreement with any Person providing for the possible acquisition of intent, or other understanding the Company (whether writtenby way of merger, oralpurchase of capital stock, binding, non-binding, purchase of assets or otherwise), any portion of its capital stock or any other equity interest in the Company or any of its Subsidiaries or any material part of its or any of its Subsidiaries (tangible or intangible) regarding assets. In the event the Company receives any communication from a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed third party expressing an interest in such a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect totransaction, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party Company will promptly, immediately notify Parent and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including provide Parent with a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller written communications and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect a detailed summary of any such breach), without the necessity of posting a bond or other securityoral communications.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Exclusivity. In consideration of the time, effort, expense, and other resources the Purchasers have expended and anticipate expending to consummate the transactions contemplated hereby, the Purchasers and the Company agree as follows:
(ai) From the date hereof until Until the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as in accordance with its terms, neither the “Exclusivity Termination Date”)Company nor any of its Subsidiaries shall, the Seller and Stockholders shall notdirectly or indirectly, and shall not authorize or permit through any of their respective officers, directors, employees, agentsrepresentatives, representatives agents or Affiliates tootherwise (including, directly without limitation, through any investment banker, attorney or indirectly: accountant retained by the Company or any of its Subsidiaries) (icollectively, the “Company Parties”), without the prior written consent of the Majority Purchasers, (A) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiryother proposal or offer from, or offer from otherwise enter into any other agreements or arrangements (other than this Agreement) with, any other Person (other than Buyer or any of its Affiliates) the Purchasers), relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, Alternative Transaction Proposal or (iiB) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect furnish to any Competing Transaction and request each other Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential any information heretofore furnished to such Person by or on behalf of, or with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the Seller, the Business or the Purchased Assetsforegoing.
(cii) From As long as the date hereof through agreements in this Section 3H are in effect, the Exclusivity Termination Date, if Company will notify the Seller or Purchasers as promptly as practicable after any Stockholder receives Company Party learns that any inquiry, proposal, or offer relating to a Competing Transaction, or Person has made any request for information relating thereto, such party will promptly, and in any event within one Alternative Transaction Proposal (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the such Person making such inquiry, proposal, offer, or request, and the terms of such proposal). The Board shall promptly advise the Purchasers orally and details thereof, including a copy of any in writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect status of any such breach)Alternative Transaction Proposal as developments arise or as requested by the Purchasers. The Company represents and warrants to the Purchasers that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction Proposal and the Company will keep the Purchasers fully informed of the status and details (including amendments and proposed amendments) of any such request, without the necessity of posting a bond Alternative Transaction Proposal or other securityinquiry. The Company further represents and warrants that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Thoma Cressey Equity Partners Inc)
Exclusivity. (a) From During the period from the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as until the “Exclusivity Funding Termination Date”), the Seller and Stockholders shall not, and shall not directly or indirectly, authorize or permit any of their respective its officers, directors, managers, employees, agents, advisors or representatives or Affiliates to, directly or indirectly: (ia) solicit, initiate, encourage, facilitate solicit or (to the extent within such Person’s control) permit the submission of encourage any proposal, inquiry, offer or offer from discussion with any Person party (other than Buyer or the Buyer) concerning any acquisition of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or any of the Purchased Assets equity of Seller; (a “Competing Transaction”b) engage in discussions or negotiations with any party (other than acquisitions the Buyer) concerning any such acquisition transaction; (c) enter into any agreement relating to any such acquisition transaction; (d) furnish to any Person nonpublic information relating to the Business; or (e) take any other action to cooperate in any way, or facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any such acquisition transaction; provided, however, that notwithstanding anything to the Purchased Assets contrary in the Ordinary Course this Section 5.3, this Section 5.3 shall in no way prohibit Seller from discussing with, negotiating with or furnishing information to (or taking any other action otherwise prohibited under this Section 5.3 with respect to) any of Business, Seller’s existing shareholders or noteholders (other than Qiagen GmbH) with respect to (i) a sale of Seller’s assets to any such shareholder or noteholder or (ii) furnish a debt or equity investment in Seller by any information, participate in any discussions such shareholder or negotiations, or enter into any Contract, letter noteholder. Seller shall notify the Buyer if it receives a proposal for the acquisition of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or Seller (other than any transaction described in the Purchased Assets.
(cproviso to the first sentence of this Section 5.3) From on or after the date hereof through and prior to the Exclusivity Termination DateClosing; provided, if that Seller shall be under no obligation to disclose to the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making any such inquiry, proposal, offer, or request, and acquisition proposal nor the terms thereof; and details thereofprovided, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges further, that any breach of nothing in this Section 6.11 would cause substantial and irreparable damage 5.3 shall obligate Seller to disclose to the Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled any proposal to an injunction, specific performance acquire Seller or other equitable relief to prevent subsidiaries or businesses other than the breach of such obligations (in addition to all other rights Business and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitySeller.
Appears in 1 contract
Exclusivity. Each of the Trucking Company, the Brokerage Company, the Additional Stockholders, and the Selling Stockholder agrees that unless this Agreement is terminated pursuant to Section 8.1, the Trucking Company, the Brokerage Company, the Additional Stockholders, and the Selling Stockholder shall deal exclusively with Buyer, and neither the Trucking Company, the Brokerage Company, the Additional Stockholders, the Selling Stockholder, nor any of their Affiliates, employees, representatives, or agents will directly or indirectly:
(a) From the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit enter into any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of transaction with any proposal, inquiry, or offer from any Person (person other than Buyer relative to any disposition of the Trucking Company or the Brokerage Company or any of its Affiliates) relating to the direct or indirect disposition, part thereof (whether by salemerger, merger sale or otherwiseexchange of shares, sale of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-bindingassets, or otherwise) regarding a Competing Transaction.);
(b) Immediately following the execution of this Agreement, each engage in any negotiations or discussions with any other person regarding any disposition of the Seller and Stockholders will terminate Trucking Company or the Brokerage Company or any and all discussions part thereof (whether by merger, sale or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf ofexchange of shares, sale of assets, or with respect to, the Seller, the Business or the Purchased Assets.otherwise);
(c) From solicit or encourage submission of inquiries, proposals, or offers from any other person relative to any potential disposition of the date hereof through Trucking Company or the Exclusivity Termination DateBrokerage Company or any part thereof (whether by merger, sale or exchange of shares, sale of assets, or otherwise); or
(d) provide further information to any person other than Buyer relating to any possible disposition of the Trucking Company or the Brokerage Company or any part thereof (whether by merger, sale or exchange of shares, sale of assets, or otherwise). Each of the Trucking Company, the Brokerage Company, the Additional Stockholders, and the Selling Stockholder agrees that if the Seller or any Stockholder receives any inquiryTrucking Company, proposalthe Brokerage Company, or offer relating to a Competing Transactionthe Selling Stockholder, the Additional Shareholders, or any request for information Affiliate receives an offer or proposal relating theretoto the possible acquisition of the Trucking Company or the Brokerage Company or any part thereof (whether by merger, such party will promptlysale or exchange of shares, sale of assets, or otherwise), the Trucking Company, the Brokerage Company, the Additional Stockholders, and in any event within one (1) Business Day, the Selling Stockholder shall immediately notify Buyer in writing of such inquiry, said offer or proposal, offer, or request, including the identity of the Person party making such inquiry, the offer or proposal, offer, or request, and the specific terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance offer or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securityproposal.
Appears in 1 contract
Exclusivity. (a) From During the period beginning on the date hereof until and ending at 11:59 p.m. (Prevailing Pacific Time) on the earlier of thirty (i30th) day after the Closing Date, or date hereof (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination DatePeriod”), the Seller and Stockholders Company agrees that the Company shall not, and nor shall not authorize or the Company permit any of its affiliates and each of their respective officers, directors, employees, equityholders, agents, affiliates, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and representatives or Affiliates to(collectively, the “Company Representatives”) to directly or indirectly: , (i) initiate contact with, solicit, initiateseek, encourage, facilitate promote or support any inquiry from; (ii) disclose, any information concerning the Company or any of its subsidiaries to; (iii) afford any access to the personnel, offices, facilities, properties, books and records of the Company or any of its subsidiaries to; or (iv) enter into any discussion, negotiation, understanding, letter of intent, term sheet, agreement or other arrangement or understanding (written or oral) with, any person or entity (other than Tesla or its representatives), in each case of clause (i) through (iv) above in connection with (w) the acquisition of, or any proposal for the acquisition of the Company or any of its subsidiaries or any or all of the capital stock or other security or assets of the Company or any of its subsidiaries (excluding sales of inventory in the ordinary course of business), whether directly or indirectly, by operation of law or otherwise, or any public offering, merger, tender offer, consolidation, scheme of arrangement, or other business combination involving the Company or any of its subsidiaries, (x) any debt or equity investment in the Company or any of its subsidiaries, (y) any joint venture with the Company or any of its subsidiaries or other strategic transaction outside of the ordinary course of business, or (z) any engagement or transfer of all or substantially all of the employees, consultants, contractors, customers, or suppliers of the Company or any of its subsidiaries (each, an “Alternative Transaction”); provided, however, that the Company may continue its discussions with East West Bank with respect to a potential restructured or replacement credit facility and line of credit.
(b) During the extent within such Person’s controlExclusivity Period, the Company shall, and shall cause each of the Company Representatives to, immediately terminate and cease and suspend any existing communication, activities, discussions or negotiations (including termination of access to any electronic dataroom) permit with any person or entity (other than Tesla or its representatives) conducted heretofore with respect to any Alternative Transaction. In the submission of event that the Company or any Company Representative receives any offer, proposal, inquiry, or offer from any Person (other than Buyer communication related to an Alternative Transaction or any request for information or access to information or other communication under circumstances that could reasonably be expected to lead to an offer, proposal or inquiry related to an Alternative Transaction (each a “Solicitation”), the Company will promptly (and in any event within twenty-four (24) hours) notify Tesla thereof and provide Tesla with a detailed written description of its Affiliatessuch Solicitation and the communications in connection therewith, including the amount and whether the proposed purchase price (if any) relating is higher or otherwise more attractive than Tesla’s then-current offer and other material terms and conditions thereof to the direct or indirect disposition, whether extent permitted by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, nonapplicable pre-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a existing confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetsobligations.
(c) From There are no legally binding obligations between the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer parties relating to a Competing Transaction, or any request for information relating thereto, such party will promptlyAlternative Transaction except those specifically set forth herein, and in any event within one except for the Non-disclosure Letter Agreement, dated December 14, 2018, by and between the Company and Tesla (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request“Non-disclosure Agreement”). Each party acknowledges and agrees that this Letter Agreement is not intended to, and does not, create any legally binding obligation on any party to consummate the terms Potential Acquisition or enter into any agreement regarding the foregoing. Such an obligation will arise only upon the negotiation, execution and details thereofdelivery of a final definitive agreement relating to the Potential Acquisition in form and substance satisfactory to the parties. Neither the discussions nor negotiations between the parties hereto nor this Letter Agreement is intended to, including a copy of and they do not, create any writing (including any electronic mail) relating theretofiduciary or other special duties or obligations between the parties hereto.
(d) Each The Company hereby represents that neither the Company, nor, to the best of the Seller Company’s knowledge, any Company Representative is currently bound by any other agreement relating to an Alternative Transaction and Stockholders hereby acknowledges that any breach the execution of this Section 6.11 would cause substantial Letter Agreement does not and irreparable damage to Buyer for will not violate any agreement by which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance any such person or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies entity is bound or to which Buyer may be entitled in respect any of any such breach), without the necessity of posting a bond or other securitytheir respective assets are subject.
Appears in 1 contract
Sources: Letter Agreement Re: Exclusivity and Non Solicitation (Tesla, Inc.)
Exclusivity. (a) From The Company covenants and agrees that neither the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates toCompany nor anyone acting on its behalf is currently involved, directly or indirectly: , in any activity which is intended to, nor for so long as this Agreement is in effect, shall the Company or anyone acting on its behalf, directly or indirectly, (ia) encourage, solicit, initiateinitiate or participate in discussions or negotiations with, encourageor provide any information to or cooperate in any manner with any Person, facilitate other than the Merger Sub or its Affiliates (collectively “Excluded Persons”), or an officer, partner, employee or other representative of an Excluded Person, concerning the sale of all or any part of the Business, any of the Company’s assets (other than Inventory in the ordinary course of business), the Shares or any capital stock or other securities of the Company, whether such transaction takes the form of a sale of stock, assets, merger, consolidation, or issuance of debt securities or making of a loan or otherwise or any joint venture or partnership or (b) otherwise solicit, initiate or encourage the submission (or attempt to submit) of any inquiry or proposal contemplating the sale of all or any part of the Business, the sale of the Company’s assets (other than Inventory in the ordinary course of business), the Shares or any capital stock, membership interests or other securities of the Company, whether such transaction takes the form of a sale of equity, assets, merger, consolidation or otherwise, or issuance of debt securities or making of a loan or any joint venture or partnership or (c) consummate any such transaction or accept any offer or agree to engage in any such transaction. The Company shall promptly (within 24 hours) communicate to the extent within such Person’s control) permit Merger Sub the submission terms of any proposal, inquiry, contract or offer from any Person (other than Buyer or sale which it may receive in respect of any of its Affiliates) relating the foregoing and respond to any such communication in a manner reasonably acceptable to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion Merger Sub. The notice of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of Company under this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Section 6.4 shall include the identity of the Person person making such inquiry, proposal, proposal or offer, copies (if written) or request, and a written description of the terms (if oral) thereof and details thereof, including a copy of any writing (including any electronic mail) relating theretoother such information with respect thereto as the Merger Sub may reasonably request.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Between the date hereof until and the earlier to occur of (i) the Closing Date, or (ii) and the termination of date that this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)is terminated in accordance with its terms, the Seller and Stockholders Company shall not, and shall not authorize or permit any of their cause its respective Affiliates, Subsidiaries, officers, directors, employees, agents, agents or representatives or Affiliates not to, directly or indirectly: (i) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the submission of encourage any proposal, inquiry, proposal or offer from any Person (other than Buyer Parent, Merger Sub, Merger Sub II and their respective representatives), (ii) respond to any submissions, proposals or offers relating to, (iii) engage in any negotiations or discussions with any person relating to, (iv) furnish or make available any non-public information regarding the Company and its Subsidiaries or any of its Affiliatestheir respective assets or businesses in a manner intended to facilitate, or (v) enter into any transaction, agreement, understanding or arrangement, whether binding or nonbinding, providing for, or otherwise cooperate in any way with any person or entity relating to any part of the direct equity interests or indirect disposition, whether by sale, merger or otherwise, of all or any a material portion of the Business assets of the Company and its Subsidiaries (including any acquisition structured as a merger, consolidation, share exchange or the Purchased Assets asset purchase) (a each, an “Competing TransactionAcquisition Proposal”). The Company will, and will cause its representatives and Affiliates to, (x) cease and cause to be terminated any existing discussions, communications or negotiations with any Person (other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessParent, or (iiMerger Sub, Merger Sub II and their respective representatives) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations conducted heretofore with respect to any Competing Transaction Acquisition Proposal, (y) revoke any such Person’s and request each Person that has heretofore executed a confidentiality agreement its authorized representatives’ access to any electronic data room granted in connection with any Acquisition Proposal and (z) reasonably promptly notify Parent of any bona fide inquiries, whether oral or written, by any Person other than Parent, Merger Sub and Merger Sub II related to an Acquisition Proposal, whether or not such inquiry was solicited by the Company or a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, representative thereof including the identity notifying Parent of the Person making such inquiry, proposal, offer, or request, and the material terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect conditions of any such breach), without the necessity of posting a bond or other securityinquiries.
Appears in 1 contract
Sources: Merger Agreement (AdaptHealth Corp.)
Exclusivity. (a) From the date hereof until the earlier Seller acknowledges that substantial time of Buyer and substantial out-of-pocket expenses (iincluding attorneys’, investment bankers’ and accountants’ fees and expenses) the Closing Datehave been and will continue to be expended and incurred in connection with conducting legal, or (ii) the termination business and financial due diligence investigations of each Company, drafting and negotiating this Agreement pursuant to Article IX (such earlier date being referred to herein as and the “Exclusivity Termination Date”)Related Agreements and other related expense. During the Pre-Closing Period, the Seller and Stockholders shall not, and Seller shall direct and shall cause Seller’s Representatives not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, encourage, initiate, encourage, or otherwise facilitate any inquiries or (to the extent within such Person’s control) permit the submission making of any proposalproposal or offer with respect to or relating to Another Transaction, inquiry(ii) conduct any discussions, enter into any negotiations, agreements, understandings or transactions, or offer from provide any information to any Person (other than Buyer and its Representatives) with respect to or relating to Another Transaction or (iii) provide any non-public financial or other confidential or proprietary information regarding any of the Companies or their Business to any Person (other than to Buyer and its Representatives). As used herein, the term “Another Transaction” means the sale, through a single or a series of related transactions, of (A) any part of the business or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, assets of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of BusinessCompanies, or (iiB) furnish any informationof the voting securities of any Company (whether by sale of stock, participate in any discussions merger, consolidation or negotiationsotherwise). Seller represents that Seller is not a party to, or enter into bound by, any Contract, letter of intent, agreement with respect to Another Transaction other than this Agreement and this Agreement will not violate any agreement to which they are bound or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transactionto which any Company’s assets are subject.
(b) Immediately following After the execution date hereof through the end of this Agreementthe Pre-Closing Period, if Seller, any Company or their Representatives receives any oral or written offer or proposal to engage in discussions relating to Another Transaction, then Seller shall immediately notify Buyer of the identity of the Person making, and the specific terms of, any such offer or proposal. In addition, Seller shall, and shall cause the Companies and each of the Seller its and Stockholders will terminate their respective Representatives to, (i) immediately cease and cause to be terminated any and all discussions existing activities, discussion or negotiations with any other Person conducted heretofore with respect to any Competing Transaction and Another Transaction, (ii) promptly request each other Person (other than Buyer and its Representatives) that has heretofore executed a confidentiality agreement in connection with a Competing such other Person’s consideration of engaging in Another Transaction with Seller or any Company to return to Seller all confidential information heretofore furnished to such other Person by or on behalf of, of Seller or with respect to, any Company and (iii) take the Seller, necessary steps to promptly inform their Representatives of the Business or the Purchased Assetsobligations undertaken in this Section 4.04.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such Each party will promptly, recognizes and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any a breach of this Section 6.11 would 4.04 will cause substantial irreparable and irreparable material loss and damage to Buyer for Buyer, which money cannot be adequately compensated for in damages would be by an inadequate remedy andaction at law. Therefore, accordingly, acknowledges and Seller agrees that Buyer will shall be entitled to an injunctionentitled, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all any other rights remedies and damages available, to the equitable remedies of injunction and specific performance with respect to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other securitySeller’s obligations under this Section 4.04.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eagle Bulk Shipping Inc.)
Exclusivity. (a) From Save as specifically provided to the date hereof contrary in terms of the provisions of sub-section (d) of this Section 6.3, from and after November 1st, 2004, and until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX for any reason (such earlier date being referred to herein as including the “Exclusivity Termination Date”exercise of the Withdrawal Option in terms of Section 2.9 above), the Seller and Stockholders shall not, Vendors have not and shall not authorize (nor has it permitted and nor shall it permit its Representatives to) directly or permit indirectly take any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: the following actions with any Person other than Purchaser and its designees:
(i) solicit, initiate, encourage, facilitate initiate or (to the extent within such Person’s control) permit the submission of encourage any proposal, inquiryproposals or offers from, or offer from engage in negotiations with, any Person relating to any possible Acquisition Proposal (other than Buyer as hereinafter defined) with Vendors or any of its Affiliates) relating to subsidiaries (whether such subsidiaries are in existence on the direct date hereof or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or are hereafter organized);
(ii) furnish any informationprovide information with respect to the Transaction Companies and/or the Portfolio Centers, participate in any discussions or negotiationsother than to Purchaser, relating to, or otherwise cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Acquisition Proposal with Vendors or any subsidiary of Vendors (whether such subsidiaries are in existence on the date hereof or are hereafter organized);
(iii) enter into any Contract, letter of intent, a contract or other understanding agreement (whether oral or written) with any Person, oralother than Purchaser, binding, non-binding, providing for an Acquisition Proposal with Vendors or otherwise) regarding a Competing Transactionany subsidiary (whether such subsidiaries are in existence on the date hereof or are hereafter organized).
(b) Immediately following Vendors shall, and shall cause its Representatives to, avoid and cause to be avoided any such negotiations with any Person relating to any Acquisition Proposal. In addition to the execution foregoing, if Vendors or any of their Representatives receives, prior to the Closing or the termination of this AgreementAgreement as aforesaid, each any Acquisition Proposal relating to any of the Seller above, Vendors shall immediately notify Purchaser thereof and Stockholders will terminate any and all discussions or negotiations provide Purchaser with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, details thereof including the identity of the Person or Persons making such inquiry, offer or proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(dc) Each As used in this Section 6.3, the term "ACQUISITION PROPOSAL" shall mean an unconditional and binding proposal or offer for a merger, consolidation or other business combination involving an acquisition of all or part of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent Transaction Companies and/or the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without Portfolio Centers and/or the necessity of posting a bond or other securityBusinesses and/or the Purchased Assets.
Appears in 1 contract
Exclusivity. (a) From Seller and Parent will not, and will not permit the date hereof until Company or any of its respective officers, directors, limited liability company managers, employees or other agents or representatives of Seller or Parent to, at any time prior to the earlier termination of this Agreement under Article X, directly or indirectly, (i) the Closing Datesolicit, initiate or encourage, or cooperate with, or enter into any contract, agreement or understanding related to, any Acquisition Proposal, or (ii) discuss or engage in negotiations concerning any Acquisition Proposal with, or further disclose any non-public information relating to the termination Business to, any person or entity in connection with an Acquisition Proposal, in each case, other than J&J and its representatives and advisors. Seller and Parent shall, and shall cause the Company and their respective directors, officers, limited liability company managers, employees, agents and representatives to, cease immediately any and all existing discussions or negotiations, if any, with any third party conducted prior to the date of this Agreement pursuant with respect to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”), the any Acquisition Proposal. Seller and Stockholders shall notParent will promptly advise J&J if any Acquisition Proposal is received by the Company, and shall not authorize Seller or permit Parent, including the terms thereof. Notwithstanding anything herein to the contrary, if Seller or Parent, or any of their respective officers, directors, employees, agents, Subsidiaries or representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit the submission of any proposal, receives an inquiry, proposal or offer from any Person (or group relating to any transaction other than Buyer an Acquisition Proposal, including a sale, purchase, merger, consolidation, combination or other transaction involving Parent (a “Separate Proposal”), then Seller and Parent, and, any of the representatives of any of the foregoing, as applicable, may (i) furnish any information and other access to any Person making such Separate Proposal and any of its Affiliates) relating to the direct or indirect dispositionrepresentatives, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate engage in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquirySeparate Proposal and any of its representatives or (iii) enter into any transaction relating to such Separate Proposal. However, proposalthe existence of a Separate Proposal will not relieve the obligations of Seller and Parent set forth in this Agreement and any Ancillary Document to which Seller or Parent is party, offerincluding, or requestselling the Purchased Equity, and conveying the Transferred Intellectual Property and (by the sale of the Purchased Equity) the entirety of the Business and the assets of the Company, to J&J and the consummation of the other transactions contemplated by this Agreement, in each case, on the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoconditions set forth in this Agreement.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Golden Entertainment, Inc.)
Exclusivity. (a) From the date hereof of this Agreement until the earlier of (i) First Effective Time or, if earlier, the Closing Date, or (ii) the valid termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)in accordance with Section 10.01, the Seller and Stockholders Acquiror shall not, and shall use cause its Subsidiaries not authorize or permit any of to, and shall use its reasonable best efforts to cause their respective officers, directors, employees, agents, representatives or Affiliates Representatives not to, directly or indirectly: :
(i) solicit, initiate, encouragesolicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, facilitate or the making of, any inquiry regarding, or any proposal or offer that constitutes any Competing Proposal;
(ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to the extent within such Person’s control) permit the submission of its properties, books and records or any confidential information or data to, any Person relating to any proposal, inquiryoffer, inquiry or request for information that constitutes any Competing Proposal;
(iii) approve, endorse or recommend, or offer from propose publicly to approve, endorse or recommend, any Competing 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 Competing Proposal; or
(v) resolve or agree to do any of the foregoing.
(b) Acquiror also agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to cause their respective Representatives to, cease any solicitations, discussions or negotiations with any Person (other than Buyer or any of its Affiliatesthe parties hereto and their respective Representatives) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has conducted heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
Proposal. Acquiror shall promptly (c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day) notify, notify Buyer in writing, the Company of the receipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes any Competing Proposal, which notice shall include a summary of the material terms of, and the identity of the Person or group of Persons making, such inquiry, proposal, offer or request for information and an unredacted copy of any Competing Proposal or inquiry, proposal or offer made in writing or, if not in writing, a written description of the material terms and conditions of such inquiry, proposal or offer. Acquiror shall promptly (and in any event within one (1) Business Day) keep the Company informed of any material developments with respect to any such inquiry, proposal, offer, request for information or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing Competing Proposal (including any electronic mail) relating thereto.
(d) Each material changes thereto and copies of any additional written materials received by Acquiror or its Representatives). Notwithstanding the foregoing, Acquiror may respond to any such proposal, offer or submission by indicating only that Acquiror is subject to an exclusivity agreement and is unable to provide any information related to Acquiror or entertain any proposals or offers or engage in any negotiations or discussions concerning a Competing Proposal for as long as that exclusivity agreement remains in effect. Without limiting the foregoing, it is understood that any violation of the Seller and Stockholders hereby acknowledges that restrictions contained in this Section 7.11 by any of Acquiror’s Representatives acting on Acquiror’s behalf, shall be deemed to be a breach of this Section 6.11 would cause substantial and irreparable damage 7.11 by Acquiror.
(c) For purposes of this Agreement, “Competing Proposal” means any Business Combination or any other transaction involving, directly or indirectly, any merger, share exchange, asset or equity acquisition or purchase, reorganization, consolidation or similar business combination with or involving the Acquiror with one or more businesses or entities or any inquiry or request for information that is intended to Buyer for which money damages would be an inadequate remedy andlead to, accordinglyor result in, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond transaction or other securityBusiness Combination.
Appears in 1 contract
Sources: Merger Agreement (10X Capital Venture Acquisition Corp. II)
Exclusivity. Prior to the Closing, Seller will, and will cause its Affiliates and representatives to, cease and cause to be terminated all activities, discussions and negotiations, if any, with any Person (aan “Acquisition Proposal”) From related to the date hereof acquisition of any capital stock or other voting securities, or any substantial portion of the assets, of Seller (including any acquisition of Seller structured as a merger, consolidation, or share exchange). Seller will use its commercially reasonable efforts to cause any Person that, since June 30, 2005, has received confidential information about Seller’s business or operations (including the Purchased Assets) from or on behalf of Seller or its Affiliates in connection with an Acquisition Proposal to return or destroy all such confidential information. Seller agrees that, until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Agreement, the neither Seller and Stockholders shall not, and shall not authorize or permit nor any of their respective officers, directors, employees, agents, its Affiliates or representatives or Affiliates to, directly or indirectly: will (i) solicit, initiate, encourage, facilitate or (to the extent within such Person’s control) permit encourage the submission of any proposal, inquiry, Acquisition Proposal or offer in respect thereof from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiationsnegotiations regarding, or enter into furnish any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the Sellerforegoing; provided, however, that an “Acquisition Proposal” shall not include any discussions, negotiations or any other activities (including the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Dateexecution of, and performance under, definitive transaction documents), if the Seller or any, involving any Stockholder receives any inquirymerger, proposalconsolidation, or offer relating to a Competing Transactionother reorganization of Aquila with another Person, provided that in any such transaction or event the obligations under this Agreement shall continue. Seller will notify Buyer of any Acquisition Proposal as soon as commercially practicable following Seller’s receipt of, or Seller otherwise becoming aware of, any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating theretoAcquisition Proposal.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Exclusivity. (a) From Except as set forth on Schedule 9.4, neither the date hereof until the earlier of (i) the Closing Date, or (ii) the termination of this Agreement pursuant to Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)Target Companies, the Seller and Stockholders shall notCompany, and shall not authorize or permit any of the Manager nor anyone acting on their respective officers, directors, employees, agents, representatives or Affiliates tobehalf is currently involved, directly or indirectly: , in any activity which is intended to, nor for so long as this Agreement is in effect, shall the Target Companies, the Company, the Manager or anyone acting on their behalf, directly or indirectly, (i) encourage, solicit, initiateinitiate or participate in discussions or negotiations with, encourageor provide any information to or cooperate in any manner with any Person, facilitate other than Purchaser or its Affiliates (collectively “Excluded Persons”), or an officer, partner, employee or other representative of an Excluded Person, concerning the sale of all or any part of the Business, any of the Target Companies’ assets (other than in the ordinary course of business), the Target Securities or any capital stock or other securities of the Target Companies, whether such transaction takes the form of a sale of equity, assets, merger, consolidation, or issuance of debt securities or making of a loan or otherwise or any joint venture or partnership, (ii) otherwise solicit, initiate or encourage the submission of (or attempt to submit) any inquiry or proposal contemplating the sale of all or any part of the Business, the sale of the Target Companies’ assets (other than in the ordinary course of business), the Target Securities or any capital stock or other securities of the Target Companies, whether such transaction takes the form of a sale of equity, assets, merger, consolidation or otherwise, or issuance of debt securities or making of a loan or any joint venture or partnership or (iii) consummate any such transaction or accept any offer or agree to engage in any such transaction. The Target Companies, the extent Company or the Manager shall promptly (within such Person’s control24 hours) permit communicate to Purchaser the submission terms of any proposal, inquiry, contract or offer from any Person (other than Buyer or sale which it may receive in respect of any of its Affiliates) relating the foregoing and respond to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion such communication in a manner reasonably acceptable to Purchaser. The notice of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect toTarget Companies, the Seller, Company and the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including Manager under this Section 9.4 shall include the identity of the Person person making such inquiry, proposal, proposal or offer, copies (if written) or request, and a written description of the terms (if oral) thereof and details thereof, including a copy of any writing (including any electronic mail) relating theretoother such information with respect thereto as Purchaser may reasonably request.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger and Share Exchange Agreement (BGS Acquisition Corp.)
Exclusivity. (a) From The Seller agrees that unless this Agreement has been terminated in accordance with Section 6.4 hereof neither the Seller, its Board of Directors, ▇▇▇▇ ▇▇▇▇▇▇, the Treasurer of the Seller, nor counsel for the Seller (collectively, "Agents") will, commencing on the date hereof until of this Agreement and continuing through the earlier Termination Date (the "Exclusive Period"), directly or indirectly, (i) solicit, encourage or negotiate any proposal (whether solicited or unsolicited) for, or execute any agreement relating to, a sale of all or any part of the Seller or its assets or a sale of any equity or debt security of the Seller or any merger, consolidation, recapitalization or similar transaction involving the Seller with any other party (any of the foregoing is referred to as an "Acquisition Proposal"), or (ii) provide any information regarding the LE Division to any third party for the purpose of soliciting, encouraging or negotiating an Acquisition Proposal relating to or affecting the LE Division (it being understood that nothing contained in clauses (i) or (ii) above shall restrict the Seller or any of its Agents from providing information as required by legal process). The Seller agrees that neither it nor its Board of Directors will authorize any person other than ▇▇▇▇ ▇▇▇▇▇▇, the Chief Financial Officer of the Seller, to enter into negotiations for or negotiate the sale of the Purchased Assets, or any portion thereof.
(b) Notwithstanding any contained in Section 7.5(a) to the contrary, the Board of Directors of the Seller may review and act upon an unsolicited good faith proposal ("Unsolicited Offer") from any other person relating to any transaction of the type set forth in this Agreement, and may participate in any negotiations regarding, furnish to any other person any information with respect to, and facilitate and encourage, any effort or attempt by any other person to do or seek any of the foregoing, if the Board of Directors of the Seller determines, based as to legal matters on the written advice of counsel, that failing to review or act would constitute a breach of their fiduciary duty.
(c) In the event that the Purchaser does not consummate the transactions contemplated by this Agreement as a result of (i) the Closing DateSeller's breach of Section 7.5(a) hereof, or (ii) the termination Seller having received an Unsolicited Offer and the Board of this Agreement pursuant to Article IX (such earlier date being referred to herein Directors of the Seller, in the exercise of their fiduciary duties, shall have recommended an alternate transaction or taken any alternative action, as the “Exclusivity Termination Date”)permitted by Section 7.5(b) hereof, the Seller and Stockholders shall not, and shall not authorize or permit any of their respective officers, directors, employees, agents, representatives or Affiliates to, directly or indirectly: (i) solicit, initiate, encourage, facilitate or (pay to the extent within such Person’s control) permit the submission of any proposal, inquiry, or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (Purchaser a “Competing Transaction”) other than acquisitions of the Purchased Assets break up fee in the Ordinary Course amount of Business$250,000, or together with all costs and expenses incurred by the Purchaser (iiincluding attorneys and other professional fees and expenses) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assetstransactions contemplated hereby.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mace Security International Inc)
Exclusivity. (a) From Seller agrees that, from the date hereof until through and including the earlier of (i) the Closing Date, Date or (ii) the termination of this Agreement pursuant to in accordance with Article IX (such earlier date being referred to herein as the “Exclusivity Termination Date”)hereof, the Seller and Stockholders shall not, and Seller shall not authorize or permit any of cause each other Transferred Company, and its and their respective officers, directors, employees, agents, Affiliates and representatives or Affiliates not to, directly or indirectly: , (ia) solicitdiscuss, initiatenegotiate, encourageundertake, facilitate authorize, recommend, propose or (to enter into, either as the extent within such Person’s control) permit the submission proposed, surviving, merged, acquiring or acquired corporation, any material transaction involving a merger, consolidation, business combination, purchase or disposition of any proposal, inquiry, amount of the assets or offer from capital stock of or other equity interest in any Person of the Transferred Companies (other than Buyer or any of its Affiliatesthe transactions contemplated by this Agreement) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business), or (ii) furnish any information, participate in any discussions or negotiations, or enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following facilitate, encourage, solicit, initiate or participate in discussions, negotiations or submissions of proposals or offers in respect of a proposed Competing Transaction, (c) furnish or cause to be furnished, to any Person (other than CEPCB and its Affiliates and representatives), any information concerning the execution business, operations, properties or assets of this Agreement, each any of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement Transferred Companies in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a proposed Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any Person (other than CEPCB and its Affiliates and representatives) to do or seek any of the Seller and Stockholders hereby acknowledges that foregoing, except in each of the foregoing cases with respect to the transactions contemplated herein. Notwithstanding the foregoing, nothing in this Section 6.12 or any breach other provision of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance Agreement shall preclude AMVEST Corporation or other equitable relief to prevent any of its Affiliates from pursuing the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect sale of any such breach)or all of its assets, without or any or all of the necessity shares of posting a bond capital stock or membership interests, as applicable, of its subsidiaries or itself, other securitythan the assets, capital stock or membership interests of the Transferred Companies.
Appears in 1 contract
Sources: Merger Agreement (Constellation Energy Partners LLC)
Exclusivity. (a) From the date hereof until Until the earlier of (i) the Closing Date, or (ii) the date of termination of this Agreement pursuant to Article IX the provisions of SECTION 9.1, neither any Shareholder nor the Company nor any of their respective Subsidiaries or Affiliates will take, nor will any Shareholder or the Company permit any of their representatives to take, any of the following actions with any Person other than Purchaser and its designees: (such earlier date being referred a) solicit, encourage or initiate any proposals or offers from, or participate in or conduct discussions with or engage in negotiations with, any Person relating to herein as any offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Business Combination with the “Exclusivity Termination Date”Company (a "COMPETING PROPOSED TRANSACTION"), (b) provide information with respect to the Seller and Stockholders shall notCompany to any Person, and shall not other than Purchaser, relating to (or which any Shareholder or the Company believes would be used for the purpose of formulating an offer or proposal with respect to), or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Business Combination with the Company, (c) agree to, enter into a Contract with any Person, other than Purchaser, providing for, or approve a Business Combination with the Company or (d) authorize or permit any of Shareholder's or the Company's representatives to take any such action. Each Shareholder and the Company and their respective Affiliates (and their officers, directors, employees, agents, representatives advisors or Affiliates to, directly other representatives) immediately shall cease and cause to be terminated all existing discussions or indirectly: (i) solicit, initiate, encourage, facilitate or (negotiations with any parties conducted heretofore with respect to a Competing Proposed Transaction. Each Shareholder and the extent within such Person’s control) permit the submission of Company agrees not to release any proposal, inquirythird party from, or offer from waive any Person (other than Buyer provision of, any confidentiality or standstill agreement to which it or any of its AffiliatesSubsidiaries is a party. Each party hereto acknowledges that this SECTION 5.2 was a significant inducement for Purchaser to enter into this Agreement and the absence of such provision would have resulted in either (i) relating a material reduction in consideration to be paid to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets (a “Competing Transaction”) other than acquisitions of the Purchased Assets in the Ordinary Course of Business, Equity Holders or (ii) furnish any information, participate in any discussions or negotiations, or a failure to induce Purchaser to enter into any Contract, letter of intent, or other understanding (whether written, oral, binding, non-binding, or otherwise) regarding a Competing Transaction.
(b) Immediately following the execution of this Agreement, each of the Seller and Stockholders will terminate any and all discussions or negotiations with respect to any Competing Transaction and request each Person that has heretofore executed a confidentiality agreement in connection with a Competing Transaction to return all confidential information heretofore furnished to such Person by or on behalf of, or with respect to, the Seller, the Business or the Purchased Assets.
(c) From the date hereof through the Exclusivity Termination Date, if the Seller or any Stockholder receives any inquiry, proposal, or offer relating to a Competing Transaction, or any request for information relating thereto, such party will promptly, and in any event within one (1) Business Day, notify Buyer in writing of such inquiry, proposal, offer, or request, including the identity of the Person making such inquiry, proposal, offer, or request, and the terms and details thereof, including a copy of any writing (including any electronic mail) relating thereto.
(d) Each of the Seller and Stockholders hereby acknowledges that any breach of this Section 6.11 would cause substantial and irreparable damage to Buyer for which money damages would be an inadequate remedy and, accordingly, acknowledges and agrees that Buyer will be entitled to an injunction, specific performance or other equitable relief to prevent the breach of such obligations (in addition to all other rights and remedies to which Buyer may be entitled in respect of any such breach), without the necessity of posting a bond or other security.
Appears in 1 contract
Sources: Merger Agreement (Intersections Inc)