Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05. (b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 4 contracts
Sources: Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Brookline Capital Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on Prior to the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article VIII, Seller and Seller Parent shall not (and shall not permit their respective directors, managers, officers, employees, equityholders, Affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to), directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the Company Agreement Date or received after the Agreement Date from any other Person to consummate a Competing Transaction or (ii) solicit, initiate, facilitate, encourage, engage in discussions or negotiations with, or furnish information to, any Person other than Buyer with respect to a Competing Transactions.
(b) (i) Seller and Seller Parent shall cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated, (ii) Seller and Seller Parent shall terminate access by any Person other than Buyer to any virtual or electronic data room containing confidential information regarding Seller and/or the Purchased Assets and shall request from each Person that had access to any such data room (other than Buyer and its Representatives) the prompt return or destruction of all non-public information with respect to Seller and/or the Purchased Assets previously provided to such Person, and (iii) Seller and Seller Parent shall not, and shall direct its cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide deal with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (Person other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Buyer with respect to proposing, encouraging, discussing or negotiating any Alternative TransactionCompeting Transactions. The Company also agrees that it will promptly request each person (other than the parties hereto Seller and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Seller Parent shall notify Buyer within 24 hours if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at is made, of any time prior proposed response by Seller or Seller Parent thereto, and any further inquiry, proposal or response from such third party. If and to the Closing, then extent permitted by the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware terms of such inquiry any applicable confidentiality agreements to which Seller or proposal) notify such person in writing that the Company is Seller Parent may be subject to an exclusivity agreement with respect to the sale as of the Company that prohibits it from considering such Agreement Date, all notices shall include the identity of the Person making the inquiry or proposal, the terms thereof, and/or, if in written form, complete and will provide BCAC with a copy of accurate copies thereof, provided, that, if Seller or Seller Parent are not permitted to disclose such information, Seller and Seller Parent shall, nevertheless, indicate whether any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including proposes an upfront cash purchase price in each case the identity excess of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Purchase Price.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Xperi Inc.), Asset Purchase Agreement (Xperi Inc.), Asset Purchase Agreement (Xperi Inc.)
Exclusivity. From the date hereof until the earlier of: (a) From the Closing Time; and (b) the date on which this Agreement terminates or is terminated pursuant to Article 12, the Vendor agree that they shall not, directly or indirectly through any of their respective Affiliates, officers, directors, partners, employees, shareholders, agents or representatives: (i) discuss, pursue or complete a possible transfer, sale or other disposition of the Purchased Shares or any interest therein with any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives (a "Competing Transaction") or provide any information to any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives in connection therewith; or (ii) except in connection with the performance of this Agreement or as required by Applicable Law, disclose the terms of this Agreement to any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives. Notwithstanding the foregoing, the Vendor is hereby authorized to respond to an inquiry or other expression of interest without being deemed to have violated this Section 11.1 to the extent the Vendor does not solicit, initiate or encourage such inquiry or other expression of interest, provided that the Vendor's response is limited to informing the Person making the inquiry or other expression of interest that the Vendor has entered into a binding agreement for the sale of Purchased Shares and is prohibited from further discussing or entertaining any proposals in respect of a Competing Transaction. The Vendor will, and will cause each of its Affiliates and their respective officers, directors, partners, employees, shareholders, agents and representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliates) relating to a potential acquisition of all the Purchasers (or substantially all Affiliates of the equity interests Purchasers)) with respect to any inquiry, proposal or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingoffer that constitutes, or furnish to any person any information with respect to, or cooperate in any way that would otherwise may reasonably be expected to constitute or lead to, any Alternative Transaction or (C) commencea Competing Transaction. Notwithstanding anything to the contrary in this Agreement, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, it is acknowledged that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation covenants of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth Vendor contained in this Section 7.05(a) by 11.1 relate to the Company Vendor acting solely in the capacity of a holder of, or its Representatives exercising control or direction over, the Purchased Shares and shall be deemed to be not affect or restrict any fiduciary or legal obligation imposed on the directors, officers, employees or representatives of the Vendor acting in such person's capacity as a breach director of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp), Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp), Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respondrespond to, or provide information to, any Person (other than Acquiror and/or any of its Affiliates or Representatives) concerning any merger, recapitalization or similar business combination transaction, or any sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”) or (ii) commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) During the Interim Period, each Acquiror Party shall not take, nor shall it permit any of its Affiliates or any of its or their respective Representatives to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond to, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders equityholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) or (ii) approve, endorse or recommend, or make any public statement approving, endorsing or recommending, any Business Combination Proposal, in the case of each of clauses (i) and (ii), other than a Business Combination Proposal with the Company, its stockholders and equityholders and/or their respective affiliates Affiliates and Representatives; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). BCAC Each Acquiror Party shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal, other than with the Company, its equityholders or their respective controlled Affiliates.
Appears in 3 contracts
Sources: Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (Cerberus Telecom Acquisition Corp.)
Exclusivity. From the date hereof through the Closing or until such time as this Agreement shall have been terminated pursuant to Article X, Seller will not, nor will Seller authorize any Affiliate or Representative of Seller to, and Seller will instruct its Affiliates or Representatives not to (a) From directly or indirectly solicit, initiate, encourage or participate in any way in (including by way of furnishing confidential information), or take any other action that facilitates any discussion, inquiry, offer, proposal, negotiation or other communication with any Person or group (other than Buyer or its Representatives) relating to, or that could reasonably be expected to result in, any merger, consolidation, sale, exchange or other disposition of any substantial portion of the date assets outside of this Agreement and ending on the earlier ordinary course of business or equity interests of or any business combination, recapitalization, liquidation, dissolution or other similar transaction (ior any combination of any of the foregoing) relating to the Closing and (ii) the termination disposition of this Agreementall, or substantially all, or any substantial portion of, the Company shall notBusiness or the Purchased Assets (each, and shall direct its Representatives not toan “Acquisition Proposal”); (b) disclose, directly or indirectly, to any Person known to Seller to be considering an Acquisition Proposal any information concerning Seller, the Business or any of the Purchased Assets; or (Ac) solicitenter into, negotiate withcontinue or participate in any discussions, provide any nonpublic information regarding the Company’s businessnegotiations or other communications, or enter into any understanding, Contract withor commitment, with any third party relating to, or take any action in any manner knowingly encourage, any proposal furtherance of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether written Acquisition Proposal received by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Seller. The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it Seller will as promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly as practicable (and in no any event later than one within three (13) Business Day after the Company become aware of such inquiry or proposalDays) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy Buyer of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives Seller shall be deemed to be a responsible for any breach of this Section 7.05(a) 6.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vought Aircraft Industries Inc), Asset Purchase Agreement (Boeing Co)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, the Company neither Seller nor bcIMC shall not, (and shall direct its not cause or permit their respective Affiliates or any of their or their Affiliates’ Representatives not to, ) directly or indirectly, : (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into encourage the submission of any Contract with, Acquisition Proposal or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliatesb) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected to lead toother manner, any Alternative Transaction effort or (C) commence, continue attempt by any Person to do or renew seek any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery Acquisition Proposal. Each of Seller and performance of this Agreement bcIMC shall immediately cease and the Transaction Documents and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shallterminated, and shall direct cause its Affiliates and all of its and their Representatives to, to immediately cease any and cause to be terminated, all existing discussions or negotiations with any person Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. Seller and bcIMC shall notify Buyer promptly (and in any event within three (3) Business Days) if any Person makes any proposal, offer, inquiry or contact with respect to any Alternative Transactionof the foregoing (whether solicited or unsolicited). The Company also agrees that it will promptly request each person For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than the parties hereto and their respective RepresentativesBuyer) that has prior to the date hereof executed concerning (i) a confidentiality agreement in connection with itsmerger, his consolidation, liquidation, recapitalization, share exchange or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If other business combination transaction involving the Company or any of its Representatives receives any inquiry the MUI Subsidiaries; (ii) the issuance or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware acquisition of such inquiry shares of capital stock or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale other Equity Interests of the Company that prohibits it from considering such inquiry or proposalany of the MUI Subsidiaries; or (iii) the sale, and will provide BCAC with a copy lease, exchange or other disposition of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity significant portion of the person making such inquiry Company’s or proposalany MUI Subsidiary’s properties or assets. Without limiting Notwithstanding the foregoing, the parties agree that any violation of the restrictions set forth nothing in this Section 7.05(a) by the Company or 6.8 will restrict Seller from complying with its Representatives shall be deemed obligations to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior bcIMC pursuant to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalStockholders Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time orearlier of (a) the Closing Date, if earlier, and (b) the termination of this AgreementAgreement pursuant to Article IX (the "Exclusivity Period"), BCAC the Company and any Affiliate, officer, director, agent, or representative of the Company shall not takenot, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly: (i) enter into any written or oral agreement or understanding with any Person (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding Another Transaction (as defined below); (ii) initiate or continue any negotiations or discussions with any person or entity (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding the possibility of Another Transaction; (iii) submit, any action to solicit, initiate, continue or engage in discussions or negotiations withencourage, participate in, or enter into facilitate any agreement withproposal or offer regarding Another Transaction; or (iv) except as otherwise required by law, provide any non-public financial or other confidential or proprietary information regarding the transactions contemplated hereby to any Person (other than to the Purchasers and other Persons acceptable to the Purchasers Representative) whom the Company knows, or encouragehas reason to believe, respondwould have any interest in participating in Another Transaction. As used herein, provide information "Another Transaction" means any issuance, sale, exchange, merger, combination, consolidation, recapitalization, or similar transaction involving any of the capital stock, equity interests, long-term debt arrangements, assets or business of the Company (other than sales of inventory in the ordinary course of business). Another Transaction shall be deemed to include the sale of either the Company's Portland operations or commence due diligence with respect to, the Company's Florida operations (a "Division Sale") even if one Person or group of related Persons does not purchase both operations. The Company shall notify the Purchasers Representative in writing immediately if after the date hereof any person Person (other than the CompanyPurchasers and other Persons acceptable to the Purchasers Representative) makes any proposal, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiryinquiry or makes or has any contact in respect to Another Transaction or a Division Sale. The parties hereto acknowledge that the Purchasers would be irreparably injured by a breach of this Section 5.5 and agree that the Purchasers Representative on behalf of all or some of the Purchasers shall be entitled, proposal or indication of interest, written or oral relating in addition to any business combination transaction
(other rights or remedies the Purchasers may have under law or by agreement, to equitable relief, including injunctive relief, in the event of a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representativesbreach of this Section 5.5. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.ARTICLE VI
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Williams Controls Inc), Series B Preferred Stock Purchase Agreement (Williams Controls Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementContract Period, the Company Seller shall not, and shall direct cause and instruct its Representatives Affiliates, directors, officers, employees and representatives not to, and shall not authorize or permit any of the foregoing to, directly or indirectly, (Ai) solicit, negotiate withinitiate, provide seek or knowingly encourage any nonpublic information regarding the Company’s businessinquiry, proposal or enter into any Contract with, or in any manner knowingly encourageoffer from, any proposal of, any person Person (other than BCAC the Purchasers and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information their respective Affiliates with respect toto the transactions contemplated by this Agreement, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Real Estate Purchase Agreement and the Transaction Documents Ancillary Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, transactions contemplated hereby and shall direct its Representatives to, immediately cease thereby) regarding any and all existing discussions offer or negotiations with inquiry from any person conducted heretofore with respect Person relating to any Alternative Transaction. The Company also agrees that it will promptly request each person direct or indirect merger, consolidation, reorganization or acquisition of the Business, the Acquired Companies (other than the parties hereto and their respective Representativesor equity interests therein) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any material portion of its Representatives receives the Business (excluding, for the avoidance of doubt, any inquiry sale of Consumables by the Business) or proposal with respect to an Alternative Transaction at all or any time prior to portion of the Closing, then Integrated Resort or the Company shall promptly (fee and in no event later than one (1) Business Day after the Company become aware related interests of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Sands Arena Landlord LLC and VCR with respect to the MSG Sphere at the Venetian or the Transferred Real Estate Assets, including any sale, lease, sale leaseback or mortgage of the Company that prohibits it from considering such inquiry Transferred Real Estate Assets (an “Offer”), (ii) furnish any information to, or proposal, and will provide BCAC with a copy of participate in any such written inquiry negotiations or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 in principle, arrangement, understanding or Contract with, or encourage, respond, provide information to or commence due diligence any Person with respect toto any Offer, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any person Offer or (other than the Companyiv) otherwise resolve, its stockholders and/or propose or agree to do any of their affiliates the foregoing. Seller agrees that any such discussions, negotiations and other communications in progress as of the date of this Agreement shall immediately be terminated and shall request that any confidential information regarding the Business and held by any Person in connection with such discussions, negotiations or Representatives)other communications be promptly returned to Seller or destroyed. In no event shall Seller accept or enter into any agreement (including any confidentiality or non-disclosure agreement) concerning any such third-party transaction. Seller shall notify the Purchasers as promptly as reasonably practicable upon any Offer that is in writing and is a bona fide offer or proposal to acquire the Business, concerningthe Integrated Resort, relating the fee and related interests of Sands Arena Landlord LLC and VCR with respect to or which is intended or is reasonably likely to give rise to or result inthe MSG Sphere at the Venetian, any offer, inquiry, proposal of the Acquired Assets or indication any of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalAcquired Interests.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Las Vegas Sands Corp), Purchase and Sale Agreement (Vici Properties Inc.)
Exclusivity. Prior to the Closing Date the Company will refrain, and cause its Affiliates, officers, directors, employees, agents and other representatives (aincluding without limitation any brokers, legal counsel, accountants, or financial advisors of the Company) From the date of this Agreement and ending on the earlier of to refrain, from directly or indirectly (x) making any offer or proposal to any Person or entering into any contract with any Person to (i) sell, issue or otherwise transfer any capital stock of the Closing Company (other than pursuant to equity plans of the Company in effect on the date hereof (without giving effect to any amendment thereof after the date hereof)) (the "Existing Equity Plans") to officers, directors and employees of the Company and its Subsidiaries); or (ii) sell or otherwise transfer any material assets or properties of the termination Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; (y) entertaining, soliciting, encouraging, accepting, negotiating or otherwise holding substantive discussions (and shall immediately cease any such actions currently underway with any Persons other than the Purchasers) regarding any offer or proposal from any Person to (i) purchase or otherwise acquire any of the capital stock of the Company; or (ii) sell or otherwise transfer any material assets or properties of the Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; or (z) providing any non-public information regarding the Company to any Person in connection with a transaction of the type described in subsections (i), (ii) and (iii) above; provided that notwithstanding anything to the contrary in this AgreementSection 6.6, the Company shall notmay consider, negotiate, approve and shall direct its Representatives not torecommend to the Shareholders of the Company any unsolicited offers or proposals for an acquisition, directly by merger, amalgamation consolidation, tender offer or indirectlyotherwise, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests assets or assets outstanding Common Shares of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Company (an “Alternative Transaction”"Unsolicited Proposal"), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, further, that unless this Agreement is terminated pursuant to Section 9.1, no such actions shall affect the execution, delivery and performance obligations of the Company under this Agreement (including without limitation the obligation of the Board of Directors of the Company to recommend to the shareholders of the Company the consummation of the transactions contemplated by this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aother Operative Documents). The Company shallFurther, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsany Unsolicited Proposal, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Affiliate thereof, may enter into a confidentiality agreement with, and provide any inquiry non-public information regarding the Company to, any Person in connection with any such Unsolicited Proposal. If any such offer or proposal with respect is made to an Alternative Transaction at or received from any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityPerson, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction will promptly advise such Person by written notice of the terms of this Section 7.05.
(b) From 6.6 and after the date hereof until the Effective Time or, if earlier, the termination will promptly deliver a copy of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior such notice to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalPurchasers.
Appears in 2 contracts
Sources: Share Purchase Agreement (Pxre Group LTD), Share Purchase Agreement (Pxre Group LTD)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Company Warrantors or any of their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors shall cause the other Group Companies and their respective Affiliates, officers, directors, representatives and agents to not, and shall direct its Representatives not to(i) solicit, directly initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any portion of the assets of the any Group Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company Warrantors immediately shall, and the Warrantors immediately shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will Warrantors shall notify the Purchaser promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsif any such proposal or offer, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect thereto, is made and shall, in any such notice to an Alternative Transaction at any time the Purchaser, indicate in reasonable detail the identity of the Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. The Warrantors agree not to, and the Warrantors shall cause the other Group Companies not to, prior to the Closing, then without the Company shall promptly (and in no event later than one (1) Business Day after prior written consent of the Company become aware of such inquiry Purchaser, release any Person from, or proposal) notify such person in writing that the waive any provision of, any confidentiality or standstill agreement to which any Warrantor or Group Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Share Purchase Agreement (Lufax Holding LTD), Share Purchase Agreement
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, no FEMSA Party shall, and each FEMSA Party shall take all action necessary to ensure that none of the Company, any of the Company shall notSubsidiaries or any of their respective Affiliates or representatives shall:
(i) solicit, and shall direct its Representatives not toinitiate, directly consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the equity interests capital stock of the Company or any of the Company Subsidiaries or assets of the CompanyCompany or any of the Company Subsidiaries, whether by merger, sale other than inventory to be sold in the ordinary course of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)consistent with past practice, (B) to enter into any agreement regardingmerger, continue consolidation or other business combination relating to the Company or any of the Company Subsidiaries or (C) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any of the Company Subsidiaries (each, an “Acquisition Proposal”); or
(ii) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. FEMSA immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing.
(b) FEMSA shall notify Heineken promptly, but in any event within 24 hours, orally and in writing if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. The Company also agrees that it will promptly request each person (Any such notice to Heineken shall indicate in reasonable detail the identity of the Person making such proposal, offer, inquiry or other than contact and the parties hereto terms and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsconditions of such proposal, his offer, inquiry or her consideration of acquiring other contact. FEMSA shall not, and shall cause the Company and each of the Company Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement to return which the FEMSA or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after Subsidiaries is a party, without the Company become aware prior written consent of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Heineken.
(bc) From and after Between the date hereof until of this Agreement and the Effective Time or, if earlier, earlier of the Closing and the termination of this Agreement, BCAC FEMSA shall not takerelease any other party from the terms of the individual confidentiality agreements which FEMSA has signed in connection with the sale of FEMSA Empire or any similar transaction involving the FEMSA Cerveza business, nor including any transaction that would be an Alternative Acquisition Proposal or otherwise. FEMSA’s obligation to enforce the terms of such confidentiality agreements shall it permit include enforcement, if applicable, of specific confidentiality provisions prohibiting such parties from making any of its affiliates or Representatives public statements with regard to takesuch transactions, whether directly or indirectly, taking any action with might force FEMSA to solicit, initiate, continue make a public statement or engage engaging in discussions any form of solicitation of proxies or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence consents with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalvoting securities of FEMSA.
Appears in 2 contracts
Sources: Share Exchange Agreement, Share Exchange Agreement (Mexican Economic Development Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, written or oral, 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 Person (other than Acquiror and/or any of its Affiliates or Representatives) concerning any purchase of any of the Company’s equity securities or the issuance and sale of any securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries) or any merger recapitalization or similar business combination transaction or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”), or commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions, conversations, negotiations or other communications with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction, and request the prompt return or destruction of all confidential information previously furnished, in each case with respect to any of the foregoing. The Company represents and warrants to Acquiror that this Section 9.04(a) does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which the Company or (to the Company’s Knowledge) any of its Affiliates are currently bound.
(b) During the Interim Period, Acquiror shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, written or oral, 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 Company and/or any of their affiliates its Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, Company and its stockholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions discussions, conversations, negotiations or negotiations other communications with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal, and request the prompt return or destruction of all confidential information previously furnished, in each case with respect to any of the foregoing. Acquiror represents and warrants to the Company that this Section 9.04(b) does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which Acquiror or any of its Affiliates are currently bound. Solely for purposes of this Section 9.04(b), the term “Affiliates” shall exclude any special purpose acquisition companies that are Affiliates of Acquiror.
Appears in 2 contracts
Sources: Merger Agreement (LMF Acquisition Opportunities Inc), Merger Agreement (LMF Acquisition Opportunities Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Seller shall not, and shall direct not authorize or permit any of its Affiliates or any of its or their Representatives not to, directly or indirectly, (Ai) encourage, solicit, negotiate withinitiate, provide any nonpublic information facilitate or continue inquiries regarding the Company’s business, or an Acquisition Proposal; (ii) enter into any Contract discussions or negotiations with, or in provide any manner knowingly encourageinformation to, any proposal of, any person Person concerning a possible Acquisition Proposal; or (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Biii) enter into any agreement regarding, continue agreements or otherwise participate in any discussions regarding, other instruments (whether or furnish not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterminated, and shall direct cause its Affiliates and all of its and their Representatives to, to immediately cease any and cause to be terminated, all existing discussions or negotiations with any person Persons conducted heretofore with respect to to, or that could lead to, an Acquisition Proposal. For purposes hereof, "Acquisition Proposal" means any Alternative Transaction. The Company also agrees that it will promptly request each person inquiry, proposal or offer from any Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company Buyer or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior Affiliates) relating to the Closingdirect or indirect disposition, then whether by sale, merger or otherwise, of all or any portion of the Company Target Business or the Purchased Assets.
(b) In addition to the other obligations under this Section 6.06, Seller shall promptly (and in no any event later than one (1within three Business Days after receipt thereof by Seller or its Representatives) Business Day after the Company become aware of such inquiry or proposal) notify such person advise Buyer orally and in writing that the Company is subject to an exclusivity agreement of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the sale material terms and conditions of the Company that prohibits it from considering such inquiry request, Acquisition Proposal or proposalinquiry, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05same.
(bc) From Seller agrees that the rights and after the date hereof until the Effective Time orremedies for noncompliance with this Section 6.06 shall include having such provision specifically enforced by any court having equity jurisdiction, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit being acknowledged and agreed that any of its affiliates such breach or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and threatened breach shall cause its affiliates irreparable injury to Buyer and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior that money damages would not provide an adequate remedy to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalBuyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Micronet Enertec Technologies, Inc.), Asset Purchase Agreement (Micronet Enertec Technologies, Inc.)
Exclusivity. 2.1 In consideration of the Purchaser granting the Put Option on the terms of the Put Option Deed, each of the Sellers agrees and undertakes that it shall not and, to the extent that it is in its power to do so, shall procure that its Representatives shall not, from the date hereof:
(a) From the date of this Agreement and ending on the earlier of enter into, participate in or continue discussions or negotiations with any Third Party in connection with or with a view to agreeing or implementing an Alternative Transaction;
(ib) the Closing and allow any Third Party (iior its Representatives) the termination of this Agreementto have access (or continued access) or otherwise provide to any Third Party (or its Representatives) any information in connection with or with a view to agreeing or implementing an Alternative Transaction, the Company shall notor otherwise co-operate with, and shall direct its Representatives not toassist or participate in any approach, directly proposal or indirectly, offer in connection with or with a view to agreeing or implementing an Alternative Transaction;
(Ac) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, initiate or enter into any Contract with, encourage offers or expressions of interest from Third Parties in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating connection with or with a view to a potential acquisition of all agreeing or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (implementing an “Alternative Transaction”), ; or
(Bd) enter into any agreement regardingor arrangement (whether or not conditional) in connection with or with a view to agreeing or implementing an Alternative Transaction.
2.2 Each of the Sellers warrants and undertakes to the Purchaser that:
(a) neither it nor any other member of its Group nor any of its Representatives is, continue or otherwise participate as at the date of this Deed, in any discussions regardingnegotiations in connection with, or furnish with a view to any person any information with respect toagreeing or implementing, or cooperate in any way that would otherwise reasonably be expected to lead to, any an Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to Third Party and any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has such negotiations which commenced prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her this Deed have been terminated; and
(b) prior to the date hereof. If the Company or of this Deed neither it nor any other member of its Representatives receives Group has entered into any inquiry binding arrangements or proposal agreements, whether or not conditional, with respect any Third Party to an effect any Alternative Transaction at any time prior to Transaction.
2.3 This Deed, and the Closingobligations contained in it, then shall come into force on the Company shall promptly date of this Deed and LON4379624t3erminate upon the earlier of (and in no event later than one the Exclusivity Period):
(1a) Business Day after the Company become aware date of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale termination of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Put Option in accordance with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity terms of the person making such inquiry or proposal. Without limiting Put Option Deed;
(b) if the foregoingPut Option is not duly exercised by the Sellers, the parties agree that any violation expiry date of the restrictions set forth Put Option Period;
(c) the Closing Date, or if earlier the date of termination of the SPA in this Section 7.05(aaccordance with the terms of the Put Option Deed or of the SPA;
(d) by the Company or its Representatives shall be deemed to be a any breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05the Put Option Deed or of the SPA by the Purchaser which is material in the context of the Proposed Transaction;
(f) the CDS Condition is not satisfied in the terms set out in clause 4 of the SPA by the date set out therein.
(b) From and after the date hereof until the Effective Time or, if earlier, the 2.4 Upon termination of this AgreementDeed, BCAC all obligations of the Parties under this Deed shall terminate except for the provisions of this clause 2.3 and clauses 5 (Costs), 6 (Third party rights) and 7 (Governing law and Jurisdiction), provided that any rights and liabilities of the Parties which have accrued under this Deed prior to termination (including, without limitation, under clause 2.8) shall continue to exist.
2.5 Neither the Sellers nor any of their respective Affiliates, nor any other person, shall be under any obligation or commitment to exercise the Put Option or to enter into any further agreement in relation to, or to enter into or continue any discussion or negotiation with regard to, the Proposed Transaction, or to accept any proposal or offer in relation to the Proposed Transaction. This Deed shall not takeconstitute, nor should it be construed to constitute, exercise of the Put Option, or acceptance of any other proposal or offer in relation to the Proposed Transaction. The Sellers agree with the Purchaser that they shall each exercise their respective right to decline, or fail, to exercise the Put Option at all times acting in good faith. For the purposes of this Deed, ‘good faith’ (bonne foi) shall be construed in accordance with the applicable provisions of French law.
2.6 Notwithstanding any other term of any Transaction Document, the obligations and liabilities of LSEG and LCH under this Deed, the Put Option Deed and each of the other Transaction Documents are several and, for the avoidance of doubt, neither joint nor joint and several.
2.7 The Purchaser agrees with the Sellers (for the benefit of the Sellers and their respective Affiliates, the members of the DBAG Group and HoldCo) that it permit any of its affiliates or Representatives is not relying upon, and has not been induced to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, grant the Put Option or enter into this Deed, by any agreement withwarranty or representation other than those expressly contained in this Deed and the other Put Option Documents (as defined in the Put Option Deed). For the avoidance of any doubt, neither LCH nor LSEG shall have any liability for or encouragein respect of any breach of any of the warranties given by LCH or LSEG (and the Purchaser shall have no remedy or recourse against LCH or LSEG for any such breach) unless and until the SPA is entered into by all parties to it (and then only on, respond, provide information to or commence due diligence with respect and subject to, any person (other than the Company, its stockholders and/or any terms of their affiliates or Representativesthe SPA), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Exclusivity Agreement, Exclusivity Agreement
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementhereof, the Company Seller shall not, and shall direct cause its Representatives Affiliates not to, directly or indirectly, (Aa) initiate, solicit, negotiate withfacilitate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, discuss, negotiate or accept any proposal ofinquiries, proposals or offers with respect to (i) the acquisition, in a single transaction or a series of related transactions, of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the outstanding shares of any class or series of equity securities or debt securities of Seller, the Company or any of its Subsidiaries or any interests therein, (ii) the acquisition (or assets any lease, license, long-term supply agreement or other arrangement having the same economic effect as an acquisition), in a single transaction or a series of related transactions, of a material portion of the Companyassets and properties of Seller, whether by the Company or any of its Subsidiaries or interests therein (on a consolidated basis), (iii) the merger, sale consolidation or combination of stockSeller, sale the Company or any of assetsits Subsidiaries or (iv) the recapitalization, business combination restructuring, reorganization, liquidation, dissolution or otherwise other extraordinary transaction with respect to Seller, the Company or any of its Subsidiaries (each of the foregoing in clauses (i) through (iv), an “Alternative Acquisition Transaction”), or (Bb) enter into any contract or agreement regardingconcerning or relating to an Acquisition Transaction, continue in each case with a party other than Buyer or otherwise participate in any discussions regardingan Affiliate of Buyer. In the event that Seller receives an inquiry, proposal or offer with respect to an Acquisition Transaction on or after the date hereof and prior to the Closing, or furnish obtains information that such an inquiry, proposal or offer is likely to be made, Seller shall provide Buyer with immediate notice thereof, which notice shall include the terms of, and the identity of the person or persons making, such inquiry, proposal or offer. Seller shall, and shall cause its Affiliates to, immediately terminate any person and all discussions or negotiations with any information third party with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, any Alternative Transaction or (C) commencean Acquisition Transaction. Prior to the Closing, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions Seller shall not be deemed a violation transfer, dispose of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than put an Encumbrance on the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration equity securities of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Subsidiaries.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Exclusivity. (a) From In consideration of the date of this Agreement expenses that CleanTech has incurred and ending on will incur in connection with the earlier of (i) the Closing and (ii) the termination of this Agreementproposed Transaction, the Company ▇▇▇▇▇▇▇▇ Parties agree that until such time as this memorandum of understanding has terminated in accordance with the provisions of paragraph 5 (such period, the "Exclusivity Period"), neither it nor any of its representatives, officers, employees, directors, agents, stockholders, subsidiaries or affiliates (the "▇▇▇▇▇▇▇▇ Group") shall notinitiate, and shall direct its Representatives not tosolicit, entertain, negotiate, accept or discuss, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, or offer from any person (or group of persons other than BCAC CleanTech and its affiliatesaffiliates (a "Competing Proposal") relating to develop a potential acquisition facility or operation at the Site contemplated by this memorandum of all or substantially all of the equity interests or assets of the Companyunderstanding, whether by merger, sale purchase of stock, sale purchase of assets, business combination joint venture, tender offer or otherwise (an “Alternative Transaction”)otherwise, (B) or provide any non-public information to any third party in connection with a Competing Proposal or enter into any agreement regardingagreement, continue arrangement or otherwise participate understanding requiring it to abandon, terminate or fail to consummate the Transaction with CleanTech. The ▇▇▇▇▇▇▇▇ Parties agree to immediately notify CleanTech if any member of the ▇▇▇▇▇▇▇▇ Group receives any indications of interest, requests for information or offers in respect of an Competing Proposal, and will communicate to CleanTech in reasonable detail the terms of any discussions regardingsuch indication, request or furnish offer, and will provide CleanTech with copies of all written communications relating to any person any information with respect tosuch indication, request or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance offer. Immediately upon execution of this Agreement and memorandum of understanding, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company ▇▇▇▇▇▇▇▇ Parties shall, and shall direct its Representatives cause the ▇▇▇▇▇▇▇▇ Group to, immediately cease terminate any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transactionor group of persons other than CleanTech and its affiliates regarding a Competing Proposal. The Company also agrees ▇▇▇▇▇▇▇▇ Parties represent that it will promptly request each person (other than no member of the parties hereto and their respective Representatives) that has prior ▇▇▇▇▇▇▇▇ Group is party to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person bound by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale a Competing Proposal other than under this memorandum of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05understanding.
(b) From If within the Exclusivity Period, the respective ▇▇▇▇▇▇▇▇ Parties do not execute definitive documentation for the Transaction reflecting the material terms and conditions for the Transaction set forth in this memorandum of understanding or material terms and conditions substantially similar thereto (other than as a result of either the mutual agreement by CleanTech and the ▇▇▇▇▇▇▇▇ Parties to terminate this memorandum of understanding or to change such material terms and conditions in any material respects or the unilateral refusal of CleanTech to execute such definitive documentation), then the ▇▇▇▇▇▇▇▇ Parties shall pay to CleanTech an amount equal to the reasonable out-of-pocket expenses in an amount not to exceed $50,000 (including the reasonable fees and expenses of legal counsel, accountants and other advisors and whether incurred prior to or after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 hereof) incurred by CleanTech in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than connection with the Companyproposed Transaction, its stockholders and their respective affiliates and Representatives. BCAC shall, and which amount shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with be payable in same day funds on the Company, its stockholders and their respective affiliates and Representatives) conducted prior to day that is the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalfirst business day after the Exclusivity Period.
Appears in 2 contracts
Sources: Memorandum of Understanding (CleanTech Biofuels, Inc.), Memorandum of Understanding (CleanTech Biofuels, Inc.)
Exclusivity. (a) From In consideration of the substantial expenditure of time, effort and expense undertaken by the Buyer in connection with its due diligence efforts and the preparation, negotiation and execution of this Agreement, from and after the date of this Agreement and ending on hereof through the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement pursuant to Article 8, no Seller, any Affiliate thereof (including any Company Entity or any director, officer or employee of the same) or any financial or other advisor of a Seller or a Company shall not, and shall direct its Representatives not toEntity shall, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regardinginto, continue or otherwise participate in any discussions or negotiations regarding, except as required or permitted herein, furnish to any Person any information regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, take any action to solicit, initiate, continue encourage or engage facilitate the making or submission of any proposal or offer from any Person relating to the acquisition, directly or indirectly, of any Company Entity, the Business or, other than in discussions the Ordinary Course of Business, any material assets of the Business, other than in connection with the consummation of the transactions under this Agreement. The Sellers hereby confirm to the Buyer that, as of the date hereof, all discussions, negotiations and other activities with any other Person by or negotiations withon behalf of the Sellers of any Company Entity or otherwise with respect to the Business or, other than in the Ordinary Course of Business, assets of the Business, have been terminated and that none of the Sellers or any Company Entity has any obligation to sell to or discuss with any other Person the sale of, or enter into other transaction involving the Business. The Sellers shall notify the Buyer of any agreement with, inquiry or encourage, respond, provide information to proposal received by the Sellers or commence due diligence any Company Entity with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than such transaction within 24 hours of receipt or awareness of the same. The Sellers agree that the rights and remedies for noncompliance with the Companythis Section 5.8 shall include having such provision specifically enforced by any court having equity jurisdiction, its stockholders it being acknowledged and their respective affiliates and Representatives. BCAC shall, and agreed that any such breach or threatened breach shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior irreparable injury to the date hereof with respect to, or which is reasonably likely Buyer and that money damages would not provide an adequate remedy to give rise to or result in, a Business Combination Proposalthe Buyer.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Exclusivity. (a) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement or the Closing, the Company shall not, and shall direct cause its Representatives officers, directors, Affiliates, managers, consultant, employees, representatives and agents (“Representatives”) not to, directly or indirectly, (Ai) encourage, solicit, negotiate withinitiate, provide engage or participate in negotiations with any nonpublic information regarding Person concerning any Alternative Transaction, (ii) take any other action intended or designed to facilitate the Company’s businessefforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding Contract related to any Alternative Transaction; provided, that . Immediately following the execution, delivery and performance execution of this Agreement and Agreement, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause each of its Representatives toRepresentatives, to immediately cease terminate any and all existing discussions discussion or negotiations with any person conducted heretofore with respect to Persons other than Parent and Sponsor concerning any Alternative Transaction. The Company also agrees shall be responsible for any acts or omissions of any of its respective Representatives that, if they were the acts or omissions of the Company, would be deemed a breach of its obligations hereunder (it being understood that it will promptly request each person such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against such Representatives with respect to any such acts or omissions). For purposes of this Agreement, the term “Alternative Transaction” means any of the following transactions involving the Company (other than the parties hereto and their respective Representativestransactions contemplated by this Agreement): (A) that has prior to any merger, consolidation, share exchange, business combination or other similar transaction or (B) any sale, lease, exchange, transfer or other disposition of all or a material portion of the date hereof executed a confidentiality agreement in connection with its, his or her consideration assets of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries (other than sales of inventory in the ordinary course of business) or any class or series of the capital stock or other equity interests of the Company, in a single transaction or series of transactions. In the event that there is an unsolicited inquiry or proposal with respect to proposal, or an indication of interest by any Person (other than Parent or any of its Representatives) in entering into, an Alternative Transaction at any time prior Transaction, communicated in writing to the ClosingCompany or any of its respective Representatives (each, then an “Alternative Proposal”), the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person Person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Altitude Acquisition Corp.), Business Combination Agreement (Altitude Acquisition Corp.)
Exclusivity. (a) From Except as set forth on Schedule 9.03(a), during the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and Buyer or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning: (i) any merger, consolidation, share exchange, business combination, or other similar transaction; (ii) any sale lease, exchange, transfer or other disposition of all or substantially all a material portion of the equity interests or assets of the CompanyCompany or its Subsidiaries or any capital stock or other equity interests of the Company or its Subsidiaries in a single transaction or series of transactions; or (iii) any purchase, whether lease, exchange, transfer or other acquisition of (A) all or a material portion of the assets of any Person by mergerthe Company or its Subsidiaries or (B) any capital stock or other equity interests of any Person by the Company or its Subsidiaries, sale in each case, in a single transaction or series of stocktransactions (each such acquisition transaction, sale but excluding, for the avoidance of assetsdoubt, business combination or otherwise (the Transactions, an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.03(a). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or that is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Buyer shall not take, nor shall it permit any of its affiliates 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 Person (other than the Company, its stockholders and/or shareholders or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). BCAC Buyer shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which that is reasonably likely to give rise to or result in, a Business Combination Proposal.
(c) Each of Buyer and the Company acknowledges and agrees that, for purposes of determining whether a breach of this Section 9.03 has occurred, the actions of each Party’s respective Affiliates and Representatives shall be deemed to be the actions of such Party, and each Party shall be responsible for any breach of this Section 9.03 by any of such Party’s Affiliates or Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Edify Acquisition Corp.), Merger Agreement (Unique Logistics International, Inc.)
Exclusivity. (a) From the date of this Agreement The Company and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company its Affiliates shall not, and shall direct its cause the Company Subsidiaries and their respective Representatives not to, directly or indirectly, (Aa) (i) solicit, negotiate with(ii) initiate, provide any nonpublic information regarding the Company’s business(iii) knowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, (iv) respond to the submission of any proposal ofor offer from any third-party relating, with respect to the Company or any person of the Company Subsidiaries, to any (other than BCAC and its affiliatesw) relating to a potential liquidation, dissolution or recapitalization, (x) merger or consolidation, (y) acquisition or purchase of all or substantially all a significant portion of the assets of, or any equity interests interest in, the Company or assets any of the Company, whether by merger, sale of stock, sale of assets, Company Subsidiaries or (z) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), nor (Bb) enter into any agreement regarding, continue or otherwise participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person other third-party any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or nor (Cc) commenceenter into any agreement with respect to a Competing Transaction, continue or renew any due diligence investigation regarding any Alternative Transaction; providedexcept, that in the executioncases of clauses (a)(iv) (and clause (a)(iii) to the extent an action described in clause (a)(iv) would also constitute an action described in clause (a)(iii)) and (b), delivery and performance of this Agreement and to the Transaction Documents and extent failure to do so would be inconsistent with the consummation fiduciary duties of the Transactions board of directors of the Company under applicable Law. Any information described in the foregoing clause shall not only be deemed provided pursuant to a violation of this Section 7.05(a)confidentiality agreement with confidentiality provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement. The Company shall, and shall direct instruct all Representatives acting on its Representatives to, and its Affiliates’ behalf to immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing. The As soon as reasonably practicable after the date hereof, the Company also agrees that it will promptly request shall instruct each person Person (other than Parent and the parties hereto Merger Subs and their respective Representativesrepresentatives) in possession of confidential information about the Company that has prior was furnished pursuant to the date hereof executed a confidentiality agreement within the prior twelve (12) months in connection with its, his any actual or her consideration of acquiring potential proposal by such Person to acquire the Company (or any portion thereof) to promptly return or destroy all Confidential Information furnished to such person by or on behalf of itinformation, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such confidentiality agreement.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (Fidelity National Information Services, Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and it shall direct its Affiliates and Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or knowingly encourage, respondrespond to, or provide information to, any Person (other than Acquiror and/or any of its Affiliates or Representatives) concerning any merger, recapitalization or similar business combination transaction, or any sale of substantially all of the stock or assets of the Company and its Subsidiaries, taken as a whole (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”) or (ii) commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) During the Interim Period, Acquiror shall not take, and it shall direct its Affiliates and Representatives not to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or knowingly encourage, respond to, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders shareholders and/or any of their affiliates Affiliates or Representatives), concerning, concerning or relating to any Business Combination involving Acquiror or which is otherwise intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination involving Acquiror (a “Business Combination Proposal”) other than with the Company, its stockholders shareholders and their respective affiliates Affiliates and RepresentativesRepresentatives or (ii) commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal other than with the Company; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(b). BCAC Acquiror shall, and shall cause direct its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Supernova Partners Acquisition Co II, Ltd.), Merger Agreement (Supernova Partners Acquisition Co II, Ltd.)
Exclusivity. (a) From The Company and the date of this Agreement Seller grant to Buyer the exclusive right to acquire the Shares until the Final Termination Date. The Company shall not and ending on shall cause its Subsidiaries not to, and the earlier of (i) the Closing and (ii) the termination of this Agreement, Seller shall cause the Company shall not, and shall direct its Representatives Subsidiaries not to, directly or indirectly, indirectly (Aa) solicit, negotiate with, provide initiate or encourage the submission of any nonpublic information regarding proposal or offer from any Person relating to the Company’s businessacquisition of the Shares or any capital stock or other voting securities, or enter into any Contract with, or in any manner knowingly encourage, any proposal substantial portion of the assets of, the Company or any person of its Subsidiaries (other than BCAC and its affiliates) relating to including any acquisition structured as a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination consolidation or otherwise share exchange) or (an “Alternative Transaction”), (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person furnishing any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead todo or seek any of the foregoing. The Seller will notify Buyer immediately if any Person makes any proposal, offer, inquiry or contact with respect to any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing and the Transaction Documents Seller shall provide copies and disclose the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterms thereof to Buyer, and shall direct its Representatives to, immediately cease any and cause to be terminated and shall use its reasonable best efforts to cause all Company/Seller Representatives to immediately terminate and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalPersons. Without limiting the foregoing, the parties agree it is agreed that any violation of the restrictions set forth in this Section 7.05(a) above by any Affiliate of the Company Company, its Subsidiaries or the Seller or any of their Representatives, whether or not such Person is purporting to act on behalf of the Company, any of its Representatives Subsidiaries or the Seller, shall be deemed to be a breach of this Section 7.05(a) 5.6 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates Subsidiary or Representatives)the Seller, concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalas applicable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Homeland Security Capital CORP), Stock Purchase Agreement (DJSP Enterprises, Inc.)
Exclusivity. (a) From Except in connection with a PIPE Investment, during the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and SPAC and/or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any purchase of all or substantially all any of the Company’s equity securities or the sale of any securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries or in a PIPE Investment) or any merger or sale of substantial assets of the CompanyCompany or its Subsidiaries, whether by mergertaken as a whole, sale other than immaterial assets or assets sold in the ordinary course of stockbusiness (each such acquisition transaction, sale of assetsbut excluding the Transactions, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.04(a). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SPAC shall not take, nor shall it permit any of its affiliates 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 Person (other than the Company, its stockholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(b). BCAC SPAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Churchill Capital Corp X/Cayman), Merger Agreement (Churchill Capital Corp X/Cayman)
Exclusivity. (a) From the date of this Agreement and ending on Effective Date, until the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with Section 10.1, none of the Sellers nor the Company shall not, and shall direct its Representatives not toshall, directly or indirectly, (Ai) solicit, negotiate withinitiate or take any action to facilitate or encourage any inquiries or the making, provide any nonpublic information regarding the Company’s business, submission or enter into any Contract with, or in any manner knowingly encourageannouncement of, any proposal of, or offer from any person (Person or group of Persons other than BCAC the Buyer and its affiliatesthe Sponsor (and their respective representatives, acting in their capacity as such) relating (a “Competing Buyer”) that may constitute, or could reasonably be expected to lead to, a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Competing Transaction; (an “Alternative Transaction”), (Bii) enter into any agreement regardinginto, participate in, continue or otherwise participate in engage in, any discussions regardingor negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual data room) any information relating to any RSI Company or any of its assets or businesses, or furnish afford access to the assets, business, properties, books or records of any person any information RSI Company to a Competing Buyer, in all cases for the purpose of assisting with respect toor facilitating, or cooperate in any way that would could otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Alternative Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (Cincluding any letter of intent or term sheet) commence, continue relating to a Competing Transaction or renew publicly announce an intention to do so; provided that none of the foregoing restrictions shall prohibit any due diligence investigation regarding any Alternative Transaction; provided, that RSI Company from taking the execution, delivery and performance actions permitted by the exceptions set forth in Section 6.1(a)(xi) of this Agreement and or the Transaction Documents and the consummation related sections of the Transactions Company and Sellers’ Disclosure Letter, and any such action shall not be deemed a violation of this Section 7.05(a7.21(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof Effective Date, until the Effective Time or, if earlier, earlier of the Closing or the termination of this AgreementAgreement in accordance with Section 10.1, BCAC the Sponsor and the Buyer shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, (i) solicit, initiate or take any action to solicitfacilitate or encourage any inquiries or the making, initiatesubmission or announcement of, any proposal or offer from any Person or group of Persons other than the Company and the Sellers (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 discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Alternative Target regarding a Buyer Competing Transaction; (other than with the Companyiii) furnish (including through any virtual data room) any non-public information relating to Buyer or any of its assets or businesses, its stockholders and their respective affiliates and Representatives) conducted prior or afford access to the date hereof assets, business, properties, books or records of Buyer to an Alternative Target, in all cases for the purpose of assisting with respect or facilitating, or that could otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (iv) approve, endorse or which is reasonably likely 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 give rise a Buyer Competing Transaction or publicly announce an intention to or result in, a Business Combination Proposaldo so.
Appears in 2 contracts
Sources: Business Combination Agreement (dMY Technology Group, Inc.), Business Combination Agreement (dMY Technology Group, Inc.)
Exclusivity. (a) From the date Except as otherwise consented to by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) or in connection with a merger, consolidation or sale of substantially all of Seller’s business (a “Seller Change of Control”) (provided, that in connection with a Seller Change of Control, Seller shall cause this Agreement and ending on the earlier to be contractually assumed or assumed by operation of (i) law), Seller agrees that prior to the Closing and (ii) or, if applicable, the termination of this Agreementthe Agreement in accordance with its terms), the Company Seller shall not, and shall direct take all action necessary to ensure that none of its subsidiaries or any of their respective Representatives shall, and shall not authorize its subsidiaries or any of their respective Representatives to, directly or indirectly, :
(Ai) solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) Person relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the equity interests Specified Business or assets of the CompanyPurchased Assets, whether effected by mergersale of assets, sale of stock, sale of assetsmerger or otherwise, business combination or otherwise other than (an “Alternative Transaction”)i) as expressly permitted by Section 5.1, (Bii) enter into any agreement regarding, continue inventory of the Products sold or otherwise disposed of in the ordinary course of business or (iii) non-exclusive licenses granted to Third Party service providers of Seller or its subsidiaries in connection with provision of services in the ordinary course of business; or
(ii) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, knowingly facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. Seller immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From Seller shall notify Purchaser promptly, but in any event within two Business Days, orally and after the date hereof until the Effective Time or, in writing if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates such proposal or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withoffer, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence inquiry with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof same, with respect to, to the Specified Business or which Purchased Assets is reasonably likely made. Any such notice to give rise to Purchaser shall indicate in reasonable detail the terms and conditions of such proposal offer or result in, a Business Combination Proposalinquiry.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Travere Therapeutics, Inc.), Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on until the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, the Company Sellers shall not, and shall direct its Representatives not permit any of their Controlled Affiliates (including the Transferred Subsidiaries) or their respective officers, directors, employees, partners, members, managers, equityholders, agents, advisors or other representatives (“Representatives”) to, (a) directly or indirectly, (A) solicit, negotiate with, provide encourage or initiate any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any third party to lead to, any Alternative Transaction do or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or seek any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, or (c) furnish any information regarding the parties agree Business to any third party (except the furnishing of information to customers, suppliers, licensors, licensees, distributors and others that any violation have a business relationship with the Business in the Ordinary Course of Business consistent with past practice for purposes of facilitating the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the CompanyBusiness’s ordinary business activities). For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and Promptly after the date hereof until the Effective Time or, if earlier, the termination execution of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Sellers shall, and shall cause its affiliates their Controlled Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing solicitations, discussions or negotiations with any person (other than third party that may be ongoing with respect to any Acquisition Proposal and shall request each third party that has been provided by or on behalf of Sellers or their Controlled Affiliates any confidential information regarding the CompanyBusiness and the Transferred Subsidiaries in connection with considering an Acquisition Proposal to return or destroy all such confidential information. In the event that Sellers or any of their Controlled Affiliates or Representatives receives an inquiry, its stockholders proposal or offer with respect to an Acquisition Proposal on or after the date hereof and their respective affiliates and Representatives) conducted prior to the date hereof Closing, Sellers will provide Buyer with respect to, or which is reasonably likely to give rise to or result in, a prompt (and in any event within one (1) Business Combination ProposalDay) notice thereof.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Exclusivity. (a) From Seller agrees that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Seller shall not, and shall direct take all action necessary to ensure that none of its controlled Affiliates or any of their respective Representatives not to, directly or indirectly, shall:
(Ai) solicit, negotiate with, provide sell any nonpublic information regarding of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person CIT Bank Purchased Assets (other than BCAC and its affiliatespursuant to this Agreement) or solicit, initiate, consider, encourage or accept any other proposals or offers from any Person relating to a potential any direct or indirect acquisition or purchase of all or substantially all any material portion of the equity interests or assets of the CompanyCIT Bank Purchased Assets, whether effected by mergersale of assets, sale of stock, sale merger, exclusive license, or otherwise; provided, however, that Buyers acknowledge and agree that any actions taken by Seller in connection with Servicing and/or resolution or settlement of assets, business combination or otherwise (an “Alternative Transaction”a Transferred Loan shall not be prohibited by this Section 6.15(a), provided such actions are in compliance with Section 6.01; or
(Bii) enter into any agreement regarding, continue or otherwise participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. Seller immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From The Seller shall notify the Buyers promptly, but in any event within twenty-four (24) hours, orally and after in writing if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to the date hereof until Buyers shall indicate in reasonable detail the Effective Time oridentity of the Person making such proposal, if earlieroffer, inquiry or other contact and the termination terms and conditions of this Agreementsuch proposal, BCAC offer, inquiry or other contact. Seller shall not takerelease any Person from, nor shall it permit or waive any of its affiliates or Representatives to take, whether directly or indirectlyprovision of, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any confidentiality agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or the CIT Bank Purchased Assets to which Seller is intended or is reasonably likely to give rise to or result ina party, any offer, inquiry, proposal or indication without the prior written consent of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalBuyers.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Sutherland Asset Management Corp)
Exclusivity. (a) From Until the date of this Agreement and ending on Closing or the earlier of (i) the Closing and (ii) the termination of this Agreement, Seller agrees that neither it nor any of its Affiliates nor any of the Company shall notmanagers and officers of Seller or its Affiliates shall, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to: (i) a merger, recapitalization, consolidation, business combination or other similar transaction involving Seller or any material portion of, the Business or the Acquired Assets; (ii) a purchase of Seller, the Business or substantially all of the Acquired Assets; (iii) a sale or disposition of all or any material portion of Seller, the Business or substantially all of the Acquired Assets; or (iv) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of Seller (any such proposal or offer, an “Acquisition Proposal”). Until the Closing or the earlier termination of this Agreement, Seller and shall direct its Representatives not tothe Seller Principals further agree that neither they nor any of their managers, officers, employees, agents or representatives shall, directly or indirectly, (Ax) solicitengage in any negotiations concerning, negotiate or provide any confidential information or data to, or have any discussions with, provide any nonpublic information regarding the Company’s businessPerson relating to an Acquisition Proposal, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (By) enter into any agreement, arrangement, understanding or other contract, agreement regardingor understanding with any Person requiring Seller or any Seller Principal to abandon, continue terminate or otherwise participate in fail to consummate any discussions regarding, of the transactions contemplated hereby or furnish to by any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions Documents. Seller shall not be deemed a violation of this Section 7.05(a). The Company promptly notify Buyer if Seller shall, and shall direct its Representatives toon or after the date hereof, immediately cease have received an Acquisition Proposal or any and all existing discussions request for information or negotiations access in connection with a possible Acquisition Proposal involving any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person or group (other than an Affiliate of Buyer), including the parties hereto nature and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware terms of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry Person or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05group.
(b) From and after Until the date hereof until Closing or the Effective Time or, if earlier, the earlier termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Seller shall, and shall cause its affiliates and Representatives representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person (Person other than with the Company, its stockholders and their respective affiliates and Representatives) Buyer conducted prior to the date hereof with respect to any Acquisition Proposal (other than, but solely limited to, discussions necessary to ensure return or which is reasonably likely to give rise to or result in, a Business Combination Proposaldestruction of all confidential information of Seller).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alkami Technology, Inc.), Asset Purchase Agreement (Alkami Technology, Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to (A) solicit, negotiate with, provide any nonpublic information regarding purchase of stock or other Equity Securities of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Company (other than BCAC (x) pursuant to or in connection with a Company Benefit Plan or (y) as consideration in an acquisition by the Company or its Subsidiaries, but subject to, and its affiliateswithout limiting anything contained in Section 6.01) relating to a potential acquisition of all or substantially all material portion of the equity interests or assets of the Company, whether by Company and its Subsidiaries or (B) any merger, sale of stock, sale of assets, business combination or otherwise other similar transaction of the Company or its Subsidiaries (an “Alternative TransactionTransaction Proposal”), (Bii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement regardingor deliver any agreement or instrument (including a confidentiality agreement, continue letter of intent, term sheet, indication of interest, indicative proposal or otherwise participate in any discussions regarding, other agreement or furnish instrument) related to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative TransactionProposal; provided, provided that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect agrees to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If notify SPAC if the Company or any of its Representatives receives or Subsidiaries receive any inquiry offer or proposal with communication in respect to of an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalProposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalpromptly communicate to SPAC in reasonable detail the terms and substance thereof, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by and the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Representatives and Representatives Subsidiaries to, immediately cease any and all existing negotiations or discussions or negotiations with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the CompanySEC any Registration Statement on Form S-1 or F-1.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives, its stockholders Subsidiaries and their respective affiliates the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC or any Subsidiary thereof, on the one hand, and any other Person (other than the Company), on the other hand (a “SPAC Alternative Transaction”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or Subsidiaries or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives, its Subsidiaries and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, regarding a Business Combination SPAC Alternative Transaction Proposal.
Appears in 2 contracts
Sources: Merger Agreement (ironSource LTD), Merger Agreement (Thoma Bravo Advantage)
Exclusivity. (a) From During the period from the date hereof to the earlier of the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to Section 10.1 or the Closing Date, the Sellers and the Company shall not, and shall direct its Representatives not authorize or cause any of their Affiliates, agents or representatives or any other Acquired Company to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide facilitate or encourage any nonpublic information regarding Competing Transaction or any inquiries or the Company’s businessmaking of any proposal that constitutes or could reasonably be expected to lead to a Competing Transaction, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bb) enter into any agreement regardinginto, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead with, or execute or enter into any Contract with respect to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Competing Transaction; provided, that the execution, . Upon execution and delivery and performance of this Agreement Agreement, the Sellers and the Transaction Documents and the consummation of the Transactions Company shall not be deemed a violation of this Section 7.05(a). The Company shall, (and shall direct its Representatives cause their respective Affiliates, agents and representatives to, immediately ) cease any and all existing discussions or negotiations with any person Person (other than Purchaser and its Affiliates) conducted heretofore on or before the date hereof with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto Competing Transaction unless and their respective Representatives) that has prior until this Agreement is terminated pursuant to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.0510.1.
(b) From The Company or the Sellers, as the case may be, shall within two (2) Business Days after receipt thereof by the Sellers or the Company advise Purchaser orally and after the date hereof until the Effective Time or, if earlier, the termination in writing of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Competing Transaction 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 inquiry with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended could reasonably be expected to result in a Competing Transaction and the material terms of the request, Competing Transaction or is reasonably likely to give rise to or result in, any offer, inquiry, proposal and the Company or indication Sellers shall inform the Person making such inquiry that it is subject to an obligation of interest, written or oral relating to any business combination transactionexclusivity but shall not otherwise respond.
(a “Business Combination Proposal”c) other than The Company and the Sellers agree that the rights and remedies for noncompliance with the Companythis Section 6.4 shall include having such provision specifically enforced by any court having jurisdiction, its stockholders it being acknowledged and their respective affiliates agreed that any such breach would cause irreparable injury to Purchaser and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior that money damages would not provide an adequate remedy to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalPurchaser.
Appears in 2 contracts
Sources: Stock and Membership Interest Purchase Agreement, Stock and Membership Interest Purchase Agreement (Cott Corp /Cn/)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and and/or (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or Exchange Act, concerning (1) any sale of assets of the Company, whether by (2) the issuance or acquisition of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities of the Company, or (3) any conversion, consolidation, merger, sale of stockliquidation, sale of assets, business combination dissolution or otherwise similar transaction (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Transaction, or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him him, or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC GigCapital5 with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC GigCapital5 shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC GigCapital5 shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Qt Imaging Holdings, Inc.), Business Combination Agreement (GigCapital5, Inc.)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Warrantors and the Company or any of their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors and the Company shall notcause the other Group Companies and their respective Affiliates, officers, directors, representatives and shall direct its Representatives agents not to, directly (i) solicit, initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any material portion of the assets of the CompanyGroup Companies, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. The Warrantors and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto Warrantors and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return shall notify the Purchaser promptly if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors and the foregoingCompany agree not to, and to cause the parties agree that any violation other Group Companies not to, without the prior written consent of the restrictions set forth in this Section 7.05(a) by the Company Purchaser, release any Person from, or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform waive any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectlyprovision of, any action confidentiality or standstill agreement to solicit, initiate, continue which any Warrantor or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which Group Company is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalparty.
Appears in 2 contracts
Sources: Share Purchase Agreement (NetEase, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) such time as this Agreement is terminated in accordance with Article IX, except for the termination of transactions contemplated by this Agreement, the Company shall Company, and the Holder Representative will not, and shall direct its Representatives will cause each of their respective Affiliates and representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide enter into or continue any nonpublic information regarding negotiation, discussion, contract, agreement, instrument, arrangement or understanding with any party, with respect to the transactions contemplated by this Agreement, the sale or transfer of voting control of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the equity interests or assets of the Company, whether by or any merger, sale of stock, sale of assets, business combination recapitalization or otherwise similar transaction with respect to the Company or its businesses (an and “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and the Holder Representative shall, and each of the foregoing shall direct its Representatives cause their respective Affiliates, directors, officers, counsel, advisors, agents or other representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Persons (other than Acquiror and Merger Sub) conducted heretofore with respect to any Alternative Acquisition Transaction. The Company also agrees that it will promptly request and the Holder Representative, and each person (other than the parties hereto and of their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsAffiliates, his officers, directors, employees, counsel, advisors, agents or her consideration of acquiring the Company to return other representatives, do not have any agreement, arrangement or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal understanding with respect to an Alternative any Acquisition Transaction (except for this Agreement). The parties hereto recognize and agree that immediate irreparable damages for which there is not adequate remedy at any time prior to law would occur in the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach provisions of this Section 7.05(a) 4.6 are not performed in accordance with the specific terms hereof or are otherwise breached. It is accordingly agreed that in the event of a failure by the Company. For claritya party to perform its obligations under this Agreement, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction non-breaching party shall be entitled to specific performance through injunctive relief, without the necessity of posting a bond, to prevent breaches of the terms provisions and to enforce specifically the provisions of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 4.6 in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating addition to any business combination transaction
(a “Business Combination Proposal”) other than with the Companyremedy to which such party may be entitled, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions at law or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalin equity.
Appears in 1 contract
Exclusivity. (a) From the date of Subject to Section 5.8(b), except with respect to this Agreement and ending on the earlier transactions contemplated hereby, the Company agrees that it will not, and it will cause each of its Subsidiaries and its and their 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: (i) the Closing and (ii) the termination of this Agreementinitiate, the Company shall notsolicit, and shall direct its Representatives not toor knowingly encourage or seek, directly or indirectly, any inquiries relating to or the making or implementation of any Third Party Proposal; (Aii) solicitengage in any negotiations concerning, negotiate or provide any information or data to, or have any substantive discussions with, provide any nonpublic information regarding the Company’s businessPerson relating to a Third Party Proposal; (iii) otherwise cooperate in or facilitate any effort or attempt to make, implement or accept a Third Party Proposal; (iv) enter into Contract with any Person relating to a Third Party Proposal or (v) release any third party from, or enter into waive any Contract with, or in any manner knowingly encourage, any proposal provision of, any person (other than BCAC and its affiliates) relating confidentiality or standstill agreement to which it is a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)party. The Company shallwill immediately cease, and shall direct will cause its Representatives toSubsidiaries and Agents immediately to cease, immediately cease any and all existing activities, discussions or negotiations with any person third parties conducted heretofore with respect to (or reasonably likely to lead to) any Alternative Third Party Proposal. "Third Party Proposal" means any Contract, proposal or offer (including any proposal or offer to the stockholders of the Company) with respect to a proposed or potential Acquisition Transaction. The "Acquisition Transaction" means: (A) any sale, lease or other disposition, direct or indirect (and however structured), of any business or assets of the Company also agrees that it will promptly request each person and/or any of its Subsidiaries, (B) any tender offer (including a self-tender offer) or exchange offer, (C) a merger, consolidation, share exchange, business combination, reorganization, joint venture, recapitalization, liquidation, dissolution or other similar transaction involving the Company, (D) the issuance, sale or other disposition, direct or indirect (and however structured, and including in connection with any financing), of securities (or securities or other rights convertible into, or exercisable or exchangeable for, such securities) or (E) any combination of the foregoing (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Merger).
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (EUSA Pharma Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to Article VII in accordance with its terms (the “Interim Period”), the Company Companies and the Management Companies shall not, and shall direct its cause their respective Affiliates and respective Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or participate in any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or provide any information to, or otherwise cooperate in any manner knowingly encourageway with, any proposal ofPerson or other entity or group, concerning any person (sale of any material assets of a member of the Company Group or any of the outstanding Company Units, Management Company Units or any conversion, consolidation, liquidation, dissolution or similar transaction involving a member of the Company Group other than BCAC with Trinity and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Representatives (an “Alternative Transaction”), (B) enter into any agreement regardingregarding or furnish to any Person any information with respect to any Alternative Transaction, or (C) commence, continue or otherwise renew any due diligence investigation regarding any Alternative Transaction; provided that the execution, delivery and performance of this Agreement and the Related Documents and the consummation of the transactions contemplated hereby shall not be deemed a violation of this Section 5.11. The Companies and the Management Companies shall, and shall cause their respective Affiliates and respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Alternative Transaction. If any member of the Company Group or any of their respective Affiliates or Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Companies shall promptly (and in no event later than twenty-four (24) hours after receipt of such inquiry or proposal) (A) advise Trinity in writing of such inquiry or proposal, (B) provide Trinity a copy of such inquiry or proposal, if in writing, or a summary of material terms, if such inquiry or proposal is not in writing, and (C) notify such Person in writing that the Company Group is subject to an exclusivity agreement with respect to the sale of the Company Group that prohibits them from considering such inquiry or proposal. Without limiting the foregoing, the Parties hereto agree that any violation of the restrictions set forth in this Section 5.11(a) by the Companies, the Management Companies or their Affiliates or Representatives shall be deemed to be a breach of this Section 5.11(a) by the Companies.
(b) During the Interim Period, Trinity shall not, and shall cause its Affiliates and their respective Representatives not to, directly or indirectly, (i) enter into, solicit, initiate or participate in any discussions regardingor negotiations with, or provide any information to, or otherwise cooperate in any way with, any Person or other entity or group, concerning any Business Combination Proposal, (ii) enter into any agreement regarding or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Business Combination Proposal or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Business Combination Proposal. The Company Trinity shall, and shall direct cause each of its Affiliates and their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofBusiness Combination Proposal. If the Company Trinity, its Affiliates or any of its their respective Representatives receives any bona fide inquiry or proposal with respect to an Alternative Transaction a Business Combination Proposal at any time after the date of this Agreement and prior to the Closing, then the Company Trinity shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become Trinity becomes aware of such inquiry or proposal) notify such person (A) advise the Companies in writing that of such inquiry or proposal and (B) provide the Company is subject to an exclusivity agreement with respect to the sale Companies a copy of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with if in writing, or a copy summary of any the material terms, if such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including is not in each case the identity of the person making such inquiry or proposalwriting. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a5.11(b) by the Company any of Trinity or its Affiliates or their respective Representatives shall be deemed to be a breach of this Section 7.05(a5.11(b) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Trinity.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with ARTICLE VII, the Company shall not, will not (and shall direct will cause its Affiliates and Representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessenter into, or enter into any Contract continue discussions, negotiations, or transactions with, or in encourage or respond to any manner knowingly encourageinquiries, any proposal ofproposals, any person (other than BCAC and its affiliates) relating to a potential acquisition of all offers or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingsubmissions by, or furnish provide any information to any person any information with respect Person relating to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding investigations relating to, or enter into or consummate any Alternative Transaction; providedtransaction relating to, (i) any merger or sale of ownership interests in, or material assets of, the Company or any of its Subsidiaries, or a recapitalization, share exchange, or similar transaction with respect to the Company or any of its Subsidiaries, or (ii) any financing, investment, acquisition, purchase, merger, sale or any other similar transaction that would restrict, prohibit or inhibit the execution, delivery and performance ability of the Company or any of its Subsidiaries to consummate the Transactions contemplated by this Agreement (the transactions in subsections (i) and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a(ii), collectively “Company Competing Transactions”). The In addition, the Company shall, will (and shall direct will cause its Affiliates and Representatives to, immediately ) promptly cease any and all existing discussions or discussions, negotiations and due diligence investigations with any person Person conducted heretofore with respect to any Alternative Company Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day 48 hours after the Company become becoming aware of such inquiry inquiry, proposal, offer or proposalsubmission) notify such person in writing that Allegro if the Company is subject (or, to an exclusivity agreement the Company’s Knowledge, any of their Affiliates or Representatives) receives any inquiry, proposal, offer or submission with respect to the sale of the a Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, Competing Transaction (not including in each case the identity of the person Person making such inquiry or submitting such proposal. Without limiting , offer or submission), after the foregoingexecution and delivery of this Agreement, the parties agree that any violation and will inform Allegro of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction principal terms of the terms of this Section 7.05inquiry, proposal, offer or submission.
(b) From and after the date hereof of this Agreement until the Effective Time orClosing, if earlier, or the earlier termination of this AgreementAgreement in accordance with ARTICLE VII, BCAC shall Allegro will not take, nor shall it permit any of (and will cause its affiliates or Affiliates and Representatives to take, whether directly or indirectly, any action to not to) solicit, initiate, enter into, or continue discussions, negotiations, or transactions with, or encourage or respond to any inquiries, proposals, offers or submissions by, or provide any information to any Person relating to, or commence, continue or engage in discussions or negotiations withrenew any due diligence investigations relating to, or enter into or consummate any agreement withtransaction relating to (i) any merger or sale of ownership interests in, or encouragematerial assets of, respondAllegro or a Subsidiary, provide information to or commence due diligence a recapitalization, share exchange, or similar transaction with respect toto Allegro or a Subsidiary or (ii) any financing, investment, acquisition, purchase, merger, sale or any person other similar transaction that would restrict, prohibit or inhibit Allegro from being able to consummate the Transactions contemplated by this Agreement (other than the Company, its stockholders and/or any of their affiliates or Representativestransactions in subsections (i) and (ii), concerningcollectively “Allegro Competing Transactions”). In addition, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Allegro will (a “Business Combination Proposal”) other than with the Company, its stockholders and will cause their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately ) promptly cease any and all existing discussions or discussions, negotiations and due diligence investigations with any person Person conducted heretofore with respect to any Allegro Competing Transaction. Allegro will promptly (other and in no event later than with 48 hours after becoming aware of such inquiry, proposal, offer or submission) notify the CompanyCompany if Allegro (or, its stockholders and to Allegro’s Knowledge, any of their respective affiliates and Affiliates or Representatives) conducted prior to the date hereof receives any inquiry, proposal, offer or submission with respect toto a Allegro Competing Transaction (not including the identity of the Person making such inquiry or submitting such proposal, offer or which is reasonably likely to give rise to submission), after the execution and delivery of this Agreement, and will inform the Company of the principal terms of the inquiry, proposal, offer or result in, a Business Combination Proposalsubmission.
Appears in 1 contract
Exclusivity. Neither the Company nor any of its Subsidiaries will, nor will the Company, its Subsidiaries or any Company Shareholder permit any of its or their respective officers, directors, employees, shareholders, Affiliates, representatives, consultants, financial advisors, attorneys, accountants or other agents to, (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding initiate or knowingly encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal of, or offer from any person (other than BCAC and its affiliates) Person relating to a potential the acquisition of all or substantially all of the equity interests capital stock or assets of the Company, whether by Company (including any acquisition structured as a merger, sale of stockconsolidation or share exchange) (collectively, sale of assets, business combination or otherwise (an “Alternative TransactionAcquisition Proposal”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or attempt by any Person to do or seek any of the foregoing. The Company represents and warrants that would otherwise reasonably it has ceased and caused to be expected to lead toterminated any and all contacts, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation discussions and negotiations with third parties regarding any Alternative Transaction; providedAcquisition Proposal(s), that the execution, delivery and performance of this Agreement and the Transaction Documents Company or the Shareholder Representative shall promptly notify Parent if any Acquisition Proposal, or any inquiry or contact with any Person with respect thereto, is made. The Company Shareholders will not vote the Common Shares in favor of any such acquisition structured as a stock sale, merger, consolidation or share exchange, other than the transactions contemplated by this Agreement; provided that, if the Company receives any unsolicited indications of interest or competing bids (whether written or oral, and the consummation Company and its Subsidiaries and each of the Transactions shall their officers, directors, employees, representatives, agents, shareholders and affiliates are not be deemed a in violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease 5.7) to pursue or enter into any and all existing discussions agreements or negotiations with any person conducted heretofore arrangements with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person a possible Acquisition Proposal (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing“Acquisition Proposal Inquiry”), then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalits officers, directors, employees, representatives, agents, shareholders, and will Affiliates) may consider and provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalinformation to, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 negotiate with, or enter into any a definitive agreement withwith such third party, or encourage, respond, provide information to or commence due diligence with respect to, any person as may be required (other than on the opinion of the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”’s outside counsel) other than with by the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior board members’ fiduciary duties to the date hereof with respect toCompany Shareholders; provided further that promptly upon receipt of such Acquisition Proposal Inquiry, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.the
Appears in 1 contract
Exclusivity. (a) From Seller agrees that, commencing on the date of this Agreement and ending on the earlier of (i) hereof through the Closing and (ii) the or earlier termination of this Agreement, Buyer shall have the Company shall notexclusive right to consummate the transactions contemplated herein, and shall direct its Representatives not toduring such exclusive period, Seller agrees that neither Seller, nor any director, officer, employee or other representative of Seller: (a) will initiate, solicit or encourage, directly or indirectly, any inquiries, or the making or implementation of any proposal or offer with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of, all or any portion of the Stations Assets (Aany such inquiry, proposal or offer being hereinafter referred to as an "Acquisition Proposal" and any such transaction being hereinafter referred to as an "Acquisition"); (b) solicitwill engage in any negotiations concerning, negotiate with, or provide any nonpublic confidential information regarding except such information relating to combined operations with Turquoise Broadcasting, Inc. as may be provided to the Company’s businessBuyer of Stations KIXW (FM) and KIXF (FM) or data to, or enter into have any Contract discussions with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyan Acquisition Proposal, whether by merger, sale of stock, sale of assets, business combination or otherwise (facilitate any effort or attempt to make or implement an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal; or (Cc) commencewill continue any existing activities, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person parties conducted heretofore with respect to any Alternative TransactionAcquisition Proposal or Acquisition. The Company also agrees Notwithstanding the foregoing, in the event that it will promptly request each person (other than Buyer defaults in any material respect in the parties hereto observance or in the due and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration timely performance of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry covenant or proposal with respect to an Alternative Transaction at any time prior to the Closingagreements herein contained and such default shall not be cured within ten (10) business days of notice of default served by Seller, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in Seller's obligations under this Section 7.05(a) by the Company or its Representatives 9.6 shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05null and void.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
Exclusivity. (a) From and after the date hereof until the Closing or, if earlier, the valid termination of this Agreement and ending on in accordance with Section 10.01, but only to the earlier extent not inconsistent with the fiduciary duties of the SPAC Board, (i) the Closing and (ii) the termination of this Agreement, the Company shall SPAC will not, and shall will direct its Representatives acting on its behalf not to, directly or indirectly, (A) initiate, seek, solicit, negotiate with, provide any nonpublic information regarding the Company’s business, knowingly facilitate or enter into any Contract with, or in any manner knowingly encourage, any proposal ofsubmit an indication of interest for, any person (other than BCAC and its affiliates) inquiries, proposals or offer to a Competing Seller relating to a potential acquisition of all Competing SPAC Transaction or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish negotiations with a Competing Seller relating to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative a Competing SPAC Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall(ii) SPAC will, and shall direct will cause its Representatives to, (A) terminate immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect Competing Seller relating to a Competing SPAC Transaction and (B) promptly advise the Company in writing of any Alternative Transaction. The Company also agrees proposal regarding a Competing SPAC Transaction involving a Competing Seller that it may receive (it being understood that SPAC will promptly request each person (other than the parties hereto and their respective Representatives) that has prior not be required to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring inform the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry proposal or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05.thereof);
(b) From and after the date hereof until the Effective Time Closing or, if earlier, the valid termination of this AgreementAgreement in accordance with Section 10.01, BCAC shall the Company and each Company Subsidiary will not, and will direct their respective Representatives acting on their behalf not taketo, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to (i) initiate, seek, solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, knowingly facilitate or encourage, respond, provide information to or commence due diligence with respect tosubmit an indication of interest for, any inquiries, proposals or offer from any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result ina Competing Transaction, (ii) participate in any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Companyregarding, its stockholders and their respective affiliates and Representatives) conducted prior or furnish or make available to any person any information relating to the date hereof Company or any Company Subsidiary with respect to, a Competing Transaction, other than to make such person aware of the provisions of this Section 8.15(b) or which is reasonably likely (iii) enter into any understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with any person relating to give rise to or result in, a Business Combination ProposalCompeting Transaction.
Appears in 1 contract
Sources: Business Combination Agreement (Union Acquisition Corp. II)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Warrantors, the Company Seller and their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors and the Seller shall cause the other Group Companies and their respective Affiliates, officers, directors, representatives and agents to not, and shall direct its Representatives not to(i) solicit, directly initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any portion of the assets of the any Group Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. The Warrantors and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Seller immediately shall, and the Warrantors and the Seller immediately shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will Warrantors and the Seller shall notify the Purchaser promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsif any such proposal or offer, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors and the foregoingSeller agree not to, and the Warrantors and the Seller shall cause the other Group Companies not to, without the prior written consent of the Purchaser, release any Person from, or waive any provision of, any confidentiality or standstill agreement to which any Warrantor, the parties agree that Seller or any violation of the restrictions set forth in this Section 7.05(a) by the Group Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into acquisition of 5% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 5% or more of the combined voting power of the Company or (3) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 5% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with GigCapital2 and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC GigCapital2 with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC GigCapital2 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 (i) the Company, its stockholders and/or any of their its affiliates or Representatives and/or (ii) Cloudbreak, its stockholders and/or any of its affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
transaction (a “Business Combination Proposal”) other than with (A) the Company, its stockholders and their respective and/or any of its affiliates and or Representatives and/or (B) Cloudbreak, its stockholders and/or any of its affiliates or Representatives. BCAC GigCapital2 shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company and each Seller shall not, and shall direct not permit any of his, her or its respective Affiliates or Representatives not to, directly or indirectly, (Aa) (i) initiate or continue any contact with, (ii) make, solicit, negotiate encourage or respond to any inquiries or proposals by, (iii) enter into or participate in any discussions or negotiations with, provide (iv) disclose, directly or indirectly, any nonpublic information concerning the Business or properties of the Company Group or the Transaction to, or (v) afford any access to the Company Group’s properties, books or records to, any Person, in the case of each of clauses (i) through (v) above, in connection with any possible proposal regarding the Company’s business, direct or enter into indirect sale of any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all portion of the equity interests Equity Securities or assets of the Company, whether by merger, Company (other than the sale of stockinventory in the Ordinary Course of Business), sale of assetsa merger or consolidation involving the Company Group, business combination or otherwise any similar transaction, in each case except as contemplated by this Agreement (an “Alternative Transaction”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to accept any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 withfor, or encouragean Alternative Transaction. During the Pre-Closing Period, respond, provide information to or commence due diligence with respect to, any person (other than each Seller and the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Company shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease all discussions and actions which violate or conflict with this Section 5.06. During the Pre-Closing Period, the Company and each Seller shall, promptly following receipt, give Buyer notice of any inquiry, communication or proposal regarding an Alternative Transaction (and all existing discussions the terms thereof) received by a Seller, any member of the Company Group, or negotiations with any person (other than with the Companyof his, her or its stockholders respective Affiliates or Representatives. Each Seller shall be responsible for any breach of this Section 5.06 by his, her or its Affiliates or Representatives. The Company and their respective affiliates and Representatives) conducted prior each Seller represents that neither he, she or it nor any of his, her or its Affiliates or Representatives is a party to the date hereof or bound by any Contract with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalan Alternative Transaction.
Appears in 1 contract
Sources: Share Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier to occur of (i) the Closing and or (ii) the termination of this AgreementAgreement pursuant to Sect▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ the Company shall not, Shareholders will (and shall direct its Representatives the Shareholders will not cause or permit HCC or any of the Shareholders' agents or representatives to, directly or indirectly, ) (Ai) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into encourage the submission of any Contract withproposal or offer from any Person relating to the acquisition of any capital stock or other voting securities, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all substantial portion of the equity interests or assets assets, of the Company, whether by HCC (including any acquisition structured as a merger, sale of stock, sale of assets, business combination consolidation or otherwise share exchange) or (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed foregoing. None of the Shareholders will vote their HCC Shares in favor of any such acquisition structured as a violation of this Section 7.05(a)merger, consolidation or share exchange. The Company shallSeller and Shareholders will notify Kend▇▇ ▇▇▇mptly if any Person makes any proposal, and shall direct its Representatives tooffer, immediately cease any and all existing discussions inquiry, or negotiations with any person conducted heretofore contact, of which they become aware, with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than of the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofforegoing. If the Company or any of its Representatives receives any inquiry the Shareholders or proposal with respect to an Alternative Transaction at any time prior to HCC violate the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions covenants set forth in this Section 7.05(a5(h), or if, after this Agreement has been executed, the Shareholders and HCC are obligated to consummate the transactions contemplated and the Shareholders and HCC fail to do so, in either event, HCC and the Shareholders shall: (i) by pay Kend▇▇, ▇▇ liquidated damages, an amount equal to Three Percent (3%) of the Company Purchase Price, which shall include the Earnout Amount; and (ii) reimburse Kend▇▇ ▇▇▇ all out-of-pocket expenses (including attorneys' and accountants' fees) Kend▇▇ ▇▇▇urs in connection with the transaction contemplated hereby. The foregoing liquidated damages provision shall not apply if (i) the transaction with Kend▇▇ ▇▇ consummated, or its Representatives shall be deemed (ii) if the transaction is not consummated due to be a breach of this Section 7.05(a) Agreement by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Kend▇▇.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kendle International Inc)
Exclusivity. (a) From The Company and the Voting Stockholders agree that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company and the Voting Stockholders shall not, and shall direct its take all action necessary to ensure that none of the Company or any of their respective Affiliates or Representatives does not to, directly or indirectly, through any shareholder, officer, director, employee, agent or otherwise, (Ai) participate in any negotiations or solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate or encourage submission of, or enter into any Contract withentertain, inquiries, proposals or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) offers relating to a potential an acquisition of all or substantially all of investment in or merger or other transaction with respect to the equity interests Company or its stock, business or assets of or any material part thereof (the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative TransactionSubject Matter”), ; (Bii) enter into any agreement regardingor take any action that by its terms or effect could reasonably be expected to adversely affect the ability of the parties hereto to consummate the Transaction on the terms and conditions set forth herein and in the Transaction Documents; or (iii) furnish or authorize any shareholder, continue officer, director, employee, agent or otherwise participate in representative to furnish any discussions regarding, information concerning this Agreement or furnish the Transaction Documents or the Transactions contemplated hereby or thereby to any person Person. The Company and Voting Stockholders will promptly notify the ILOG Group of any unsolicited inquiry, proposal or offer relating to any of the foregoing Transactions and will refrain from engaging in negotiations or providing any information with respect toto such inquiry, proposal or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)offer. The Company shall, and shall direct its Representatives to, the Voting Stockholders will immediately cease and cause to be terminated any and all existing discussions activities, discussions, or negotiations with any person Person conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it and Voting Stockholders will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof all Persons who have heretofore executed a confidentiality agreement in connection with its, his or her such Person’s consideration of acquiring the Company foregoing to return or destroy all Confidential Information confidential information heretofore furnished to such person Persons by or on behalf of itthe Company, him or her prior will enforce all obligations under such confidentiality agreements and upon request, will provide to the date hereofILOG Group copies of certificates from such Persons certifying the return or destruction of such confidential information. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to At the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after Voting Stockholders will assign to the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect ILOG Group, all their rights under all confidentiality agreements relating to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting other transactions involving the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Ilog Sa)
Exclusivity. (a) From Prior to the date earlier of the Closing and the termination of this Agreement in accordance with Article VIII, the Corporation shall not (and ending on the earlier of shall not permit their respective directors, officers, employees, equityholders, Affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to), directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the Closing Agreement Date or received after the Agreement Date from any other Person to consummate a Competing Transaction, or (ii) solicit, initiate, knowingly facilitate or knowingly encourage, engage in discussions or negotiations with, or furnish information to, any Person other than Parent with respect to a Competing Transaction.
(i) The Corporation and the Stockholders shall cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated, (ii) the termination Corporation shall terminate access by any Person other than Parent to any virtual or electronic data room containing confidential information regarding the Corporation or any subsidiary of this Agreementthe Corporation and shall request from each Person that had access to any such data room (other than Parent and its Representatives) the prompt return or destruction of all non-public information with respect to the Corporation previously provided to such Person, and (iii) the Company Corporation and the Stockholders, shall not, and shall direct its cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide deal with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (Person other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Parent with respect to discussing or negotiating any Alternative Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto Corporation shall notify Parent promptly, and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsany event within 24 hours, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at any time prior to is made, including in such notice the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering such Person making the inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05thereof, and, if in written form, complete and accurate copies thereof.
(bc) From and No later than two Business Days after the date hereof until the Effective Time or, if earlierAgreement Date, the termination Corporation shall withdraw the filing of this Agreement, BCAC 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 the Triller LLC 2024 S-1 with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalan appropriate SEC withdrawal filing.
Appears in 1 contract
Exclusivity. (a) From The Company agrees that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct take all action necessary to ensure that none of its Representatives not toSubsidiaries or any of their respective Affiliates or representatives shall, directly or indirectly, :
(Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into knowingly encourage or accept any Contract with, other proposals or in offers from any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesi) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or ownership interest of the Company or any of its Subsidiaries or assets of the CompanyCompany or any of its Subsidiaries, whether by merger, sale other than inventory to be sold in the ordinary course of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)consistent with past practice, (Bii) to enter into any agreement regardingmerger, continue consolidation or other business combination relating to the Company or any of its Subsidiaries or (iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any of its Subsidiaries (the “Prohibited Transactions”); or
(b) knowingly participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise knowingly cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, immediately shall cease and shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative of the foregoing.
(c) The Company shall notify the Buyer promptly, but in any event within 24 hours, orally and in writing if any proposal, offer, or inquiry or other contact with any Person (other than Buyer, 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 proposal, offer, inquiry or other contact and the material terms and conditions of such proposal, offer, inquiry or other contact. The Company also agrees that it will promptly request and each person (other than the parties hereto and their respective Representatives) that has prior of its Subsidiaries shall not, release any Person from, or waive any provision of, any confidentiality or standstill agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If which the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time Subsidiaries is a party, without the prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale written consent of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Buyer.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Infor, Inc.)
Exclusivity. (a) From The Company and the Selling Entities agree that, between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company and the Selling Entities shall not, and shall direct take all action reasonably necessary to ensure that none of the Company, any of its Representatives not toSubsidiaries, or any of their respective Affiliates or Representatives, acting at their direction or on their behalf, shall, directly or indirectly, :
(Aa) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessconsider, encourage, or enter into accept any Contract with, other proposals or in offers from any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesa “Third Party Proposal”) (i) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or assets ownership interest of the Company or any Subsidiaries of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bii) to enter into any agreement regardingmerger, continue consolidation, or other business combination relating to the Company or any Subsidiaries of the Company, or (iii) to enter into a recapitalization, reorganization, or any other extraordinary business transaction involving or otherwise relating to the Company or any Subsidiaries of the Company; or
(b) participate in any discussions discussions, conversations, negotiations, or other communications regarding, or furnish to any person other Person, any confidential information with respect to, or otherwise knowingly cooperate in any way that would otherwise reasonably way, assist or participate in, facilitate, or encourage any submission of any such Third Party Proposal.
(c) The Selling Entities immediately shall cease and cause to be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to a Third Party Proposal.
(d) As promptly as practicable following execution of this Agreement (and in any Alternative Transaction. The event within ten (10) Business Days), the Company also agrees that and the Selling Entities, as applicable, shall (i) request in writing (to the extent it will promptly request each person (other than the parties hereto and their respective Representativeshas not previously requested) that each third party that has prior to the date hereof previously executed since March 31, 2019 a confidentiality or similar agreement in connection with its, his or her its consideration of acquiring a proposal or offer promptly return to the Company to return or the Selling Entities, as applicable, or destroy all Confidential Information any confidential information previously furnished or made available to such person third party or any of its Representatives by or on behalf of it, him or her prior to the date hereof. If the Company or any of its the Selling Entities, as applicable, or their respective Representatives receives any inquiry or proposal in accordance with respect the terms of the confidentiality agreement in place with such third party and (ii) terminate access to an Alternative Transaction at any time prior each such third party to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) virtual “data room” established by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by and the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Selling Entities.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (KAMAN Corp)
Exclusivity. (a) From Each of the date MBS Parties agrees that from the execution of this Agreement and ending on until the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company MBS Parties shall not, and the MBS Parties shall direct take all action necessary to ensure that none of the Company or any of its Subsidiaries or any of their respective Related Parties, any Related Party of an MBS Party or any Representatives not toof the foregoing shall, directly or indirectly, :
(Aa) solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesi) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or ownership interest of the Company or any of its Subsidiaries or assets of the CompanyCompany or any of its Subsidiaries, whether by merger, sale other than inventory to be sold in the ordinary course of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)consistent with past practice, (Bii) to enter into any agreement regardingmerger, continue consolidation or other business combination relating to the Company or any of its Subsidiaries or (iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any of its Subsidiaries; or
(b) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, MBS Parties immediately shall cease and shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. Nothing in this Section 5.3(b) is intended to or shall prevent any MBS Party from informing any other Person that such MBS Party is restricted from having any of the foregoing discussions, conversations, negotiations or other communications.
(c) The MBS Parties shall notify the Buyer promptly, but in any event within 24 hours, orally and in writing, if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to the Buyer shall indicate in reasonable detail the identity of the Person making such proposal, offer, inquiry or other contact and the terms and conditions of such proposal, offer, inquiry or other contact. The Company also agrees that it will promptly request each person (other than the parties hereto MBS Parties shall not, and shall cause their respective Representatives) that has prior to Related Parties and the date hereof executed a Company and each of its Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement entered into in connection with itsany such actual or potential proposal or offer, his to which the MBS Parties, any of the MBS Parties’ respective Related Parties or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time Subsidiaries is a party, without the prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale written consent of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Buyer.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Purchase Agreement (Barnes & Noble Education, Inc.)
Exclusivity. (a) From The Sellers, the Parent Companies, RRP and RPMC shall, and they each shall cause their respective Representatives and, in the case of the Sellers and the Parent Companies, the Companies, to, immediately cease and cause to be terminated any discussions or negotiations with any third party (other than Buyer and its Affiliates) that may be ongoing as of the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementhereof with respect to an actual or potential Alternative Transaction. In addition, the Company Sellers, the Parent Companies, RRP, and RPMC shall not, and they each shall direct its cause their respective Representatives and, in the case of the Sellers and the Parent Companies, the Companies, not to, subject to Section 8.8(b) below, (i) directly or indirectly, (A) solicit, negotiate withor initiate or knowingly facilitate or encourage (including by way of furnishing non-public information or providing access to its properties, provide books, records or personnel) any nonpublic information regarding the Company’s businessinquiries regarding, or enter into the making of any Contract withproposal or offer that constitutes, or in any manner knowingly encouragewould reasonably be expected to result in, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bii) enter into any agreement regardingor agreement in principle with respect to an Alternative Transaction, continue (iii) engage in negotiations or otherwise participate in any discussions regarding, or furnish or disclose to any person third party any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, however, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to obtaining the ClosingShareholder Approvals, in response to a bona fide Alternative Transaction received by the Sellers or the Sellers’ Representative after the date hereof that was not solicited in violation of this Section 8.8 and that RRP, as the managing shareholder of the Trusts, determines in good faith (after consultation with outside legal counsel and financial advisors) would reasonably be expected A-48 to lead to a Superior Proposal, and, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such Alternative Transaction would be inconsistent with its fiduciary duties under applicable Law and the governing documents of such Seller (as such documents are in effect as of the date hereof), then the Company Sellers’ Representative may (on behalf of Trust I or the Providence Sellers (as applicable)), in response to such Alternative Transaction (x) provide access to its properties, personnel, books and records and furnish information to the Person making such Alternative Transaction and (y) participate in discussions or negotiations with the Person making such Alternative Transaction regarding such Alternative Transaction; provided, that, prior to furnishing such information to or entering into discussions or negotiations with such Person, the Sellers’ Representative shall receive from such Person an executed confidentiality agreement, the terms of which shall be substantially similar to, and not materially less favorable to the Sellers and the Companies than, in the aggregate, those contained in the Confidentiality Agreement; provided, further that the Sellers’ Representative shall promptly (and in no event later than one (1) Business Day after provide to Buyer any non-public information concerning the Company become aware of such inquiry Sellers or proposal) notify such person in writing that the Company is subject Companies not previously provided to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company Buyer or its Representatives shall be deemed that is provided to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person Person making an unsolicited proposal regarding an such Alternative Transaction of the terms of this Section 7.05Transaction.
(b) From Notwithstanding any provisions in this Section 8.8 to the contrary, prior to obtaining the applicable Shareholder Approval, RRP, as the managing shareholder of the Trusts, may, in response to a Superior Proposal, (i) withdraw (or not make or continue to make) or modify, or publicly propose to withdraw (or not make or continue to make) or modify, both the Olinda Recommendation and the Providence Recommendation, (ii) enter, or cause the Sellers to enter, into an agreement regarding such Superior Proposal, or (iii) approve or recommend any such Superior Proposal, in each case, if (A) RRP, as the managing shareholder of the applicable Trusts, has determined in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the fiduciary duties of RRP to the holders of shares of the applicable Trusts under applicable Law and the governing documents of such Seller (as such documents are in effect as of the date hereof), (B) (1) the Sellers’ Representative has given the Buyer three (3) days prior written notice of RRP’s intention, as the managing shareholder of the applicable Trusts, to take such action (it being understood and agreed that any change to the consideration offered or other material terms of such Superior Proposal shall require an additional notice to Buyer and a new three (3) day notice period) and (2) RRP shall have considered in good faith (after consultation with its outside legal counsel and financial advisors) any changes or revisions to this Agreement proposed in writing by Buyer and shall not have determined that the Superior Proposal would no longer constitute a Superior Proposal if such changes were to be given effect and (3) the Sellers and the Companies (as applicable) shall have complied in all respects with their obligations under this Section 8.8 and (C) the Sellers’ Representative shall have terminated this Agreement in accordance with the provisions of Section 13.1(d) hereof and shall have paid to Buyer the termination fee and expenses in accordance with Section 13.2(c). None of the Sellers nor the Companies shall, after the date hereof until hereof, enter into any confidentiality agreement that would prohibit it from providing any of the Effective Time or, if earlier, above information to the termination Buyer.
(c) For purposes of this Agreement, BCAC shall not take“Alternative Transaction” means any proposal or offer, nor shall it permit in each case made in writing, from any third party, relating to, in a single transaction or a series of related transactions, any (a) merger, consolidation, business combination, reorganization, share exchange, spin-off, split-off, recapitalization, liquidation, dissolution or similar transaction involving a direct or indirect acquisition of 20% or more of the assets (based on fair market value) of any of its affiliates the Providence Companies or Representatives to takeany of the Olinda Companies, whether or (b) the acquisition (including by way of tender or exchange offer) in any manner, directly or indirectly, any action to solicit, initiate, continue of over 20% of the Equity Interests of 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 the consolidated assets (other than the Company, its stockholders and/or based on their fair market value) of any of their affiliates the Olinda Companies or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalProvidence Companies.
Appears in 1 contract
Sources: Interest Purchase Agreement (Ridgewood Electric Power Trust Iii)
Exclusivity. (a) From the date of this Agreement and ending on until the Closing, or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article VII, the Company shall not, will not (and shall direct will not cause or permit any Subsidiary or its or their Affiliates or Representatives not to, directly or indirectly, (A) solicit, negotiate initiate, enter into, or continue discussions, negotiations, or transactions with, or encourage or respond to any inquiries or proposals by, or provide any nonpublic information regarding the Company’s businessto any Person relating to, or enter into or consummate any Contract withtransaction relating to, or in (i) any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stockthe Company’s equity interests or a material portion of the Company’s or its Subsidiaries’ assets, or a similar change in control transaction with respect to the Company or any Subsidiary or (ii) any financing, investment, acquisition, purchase, merger, sale of assetsor any other similar transaction that would restrict, business combination prohibit or otherwise inhibit the Company’s ability to consummate the Transactions contemplated by this Agreement (an the transactions in subsections (i) and (ii), collectively “Alternative TransactionCompeting Company Transactions”). In addition, (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallwill, and shall direct will cause each of its Subsidiaries and its and their respective Representatives to, immediately promptly cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Competing Company Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day 48 hours after the Company become becoming aware of such inquiry inquiry, proposal, offer or proposalsubmission) (x) notify such person in writing that Parent if the Company is subject or, to an exclusivity agreement the Company’s Knowledge, any of its Subsidiaries, Affiliates, or Representatives receives any inquiry, proposal, offer or submission with respect to a Competing Company Transaction after the sale execution and delivery of this Agreement, (y) notify Parent of the Company that prohibits it from considering identity of the Person making such inquiry or submitting such proposal, offer or submission, and will (z) provide BCAC Parent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or inquiry, proposal, including offer or submission (in each the case of subsections (y) and (z) only, to the identity extent not prohibited by any applicable non-disclosure agreement entered into prior to the date of the person making such inquiry or proposal. Without limiting the foregoingExclusivity Agreement, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by to which the Company or its Representatives shall be deemed to be is a breach of this Section 7.05(a) party, as determined in good faith by the Company. For clarity, in which case the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of shall provide such notice to the terms of maximum extent not prohibited). The Company agrees that the rights and remedies for noncompliance with this Section 7.054.3(a) include specific performance, it being acknowledged and agreed that any breach or threatened breach will cause irreparable injury to Parent and that money damages would not provide an adequate remedy for such injury.
(b) From and after the date hereof of this Agreement until the Effective Time orClosing, if earlier, or the earlier termination of this AgreementAgreement in accordance with ARTICLE VII, BCAC shall Parent and Merger Sub will not take, nor shall it (and will not cause or permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to to) solicit, initiate, enter into, or continue discussions, negotiations, or engage in discussions transactions with, or negotiations withencourage or respond to any inquiries or proposals by, or provide any information to any Person relating to, or enter into or consummate any agreement withtransaction relating to (i) any merger, sale of the equity interests of Parent or Merger Sub or a material portion of Parent’s assets, or encourage, respond, provide information to or commence due diligence a similar change in control transaction with respect toto Parent or Merger Sub or (ii) any financing, investment, acquisition, purchase, merger, sale or any person other similar transaction that would restrict, prohibit or inhibit Parent’s ability to consummate the Transactions contemplated by this Agreement (other than the Company, its stockholders and/or any of their affiliates or Representativestransactions in subsections (i) and (ii), concerningcollectively “Competing Parent Transactions”). In addition, relating to or which is intended or is reasonably likely to give rise to or result inParent will, any offer, inquiry, proposal or indication and will cause Merger Sub and each of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately promptly cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Competing Parent Transaction. Parent will promptly (other and in no event later than 48 hours after becoming aware of such inquiry, proposal, offer or submission) notify the Company if Parent, Merger Sub or, to Parent’s Knowledge, any of its or their Representatives receives any inquiry, proposal, offer or submission with respect to a Competing Parent Transaction (including the Companyidentity of the Person making such inquiry or submitting such proposal, its stockholders offer or submission), after the execution and their respective affiliates delivery of this Agreement, and Representativeswill provide the Company with a copy of such inquiry, proposal, offer or submission. Parent agrees that the rights and remedies for noncompliance with this Section 4.3(b) conducted prior include specific performance, it being acknowledged and agreed that any breach or threatened breach will cause irreparable injury to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalCompany and that money damages would not provide an adequate remedy for such injury.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) Until the Closing and (ii) the termination of this AgreementDate, neither the Company and its Subsidiaries nor any Stockholder shall not, and shall direct its Representatives not (or permit any other Person on their behalf to, ) directly or indirectly, (A) solicitsolicit or engage in discussion with third parties, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessentertain, engage in or respond to offers, inquiries, proposals or discussions, or enter into any Contract with, agreement involving any transaction that has as its purpose a business combination involving or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all disposing of the equity interests whole or assets part of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries or any other transaction that would prevent the transactions contemplated by this Agreement (each a “Proposal”). The Stockholders’ Representative will notify the Buyer as soon as practicable if any Person makes any proposal, offer, inquiry to or proposal contact with the Company or any of its Subsidiaries or any Stockholder with respect to an Alternative Transaction any Proposal and shall describe in reasonable detail the identity of any such Person and the substance and material terms of any such contact and the material terms of any such proposal, offer or inquiry. The parties hereto recognize and agree that immediate irreparable damages for which there is not adequate remedy at law would occur in the event that the provisions of this Section 6.05 are not performed in accordance with the specific terms hereof or are otherwise breached. It is accordingly agreed that in the event of a failure by a party to perform its obligations under this Section 6.05, the Buyer shall be entitled to specific performance through injunctive relief, without the necessity of posting a bond, to prevent breaches of this Section 6.05 and to enforce specifically the provisions of this Section 6.05 in addition to any time prior other remedy to which the ClosingBuyer may be entitled, then at law or in equity. For purposes of this Agreement, “Proposal” shall include any proposed or actual (a) sale, merger, consolidation or similar transaction involving the Company shall promptly or its Subsidiaries, (and in no event later than one (1b) Business Day after the Company become aware sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of such inquiry any assets or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale properties of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity its Subsidiaries representing more than 10% of the person making such inquiry consolidated assets, revenues, earnings before interest, tax, depreciation and amortization or proposal. Without limiting the foregoing, the parties agree that any violation profits of the restrictions set forth in this Section 7.05(aCompany or such Subsidiaries, or (c) sale or other disposition by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Subsidiaries (including by way of merger, consolidation or Representatives share exchange) of any interest or securities (or options, rights or warrants to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withpurchase, or enter into any agreement withsecurities convertible into, such securities) representing 10% or encourage, respond, provide information to or commence due diligence with respect to, any person (other than more of the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than votes associated with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalShares.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sensata Technologies B.V.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, but only, in the Company case of HCAC, except to the extent it determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the HCAC Board, the parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” (within the meaning of Section 13(d) of the Exchange Act), concerning any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries other than BCAC with the other parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)7.05. The Company Each party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each party also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC but only, in the case of HCAC, except to the extent it determines in good faith, after consultation with a copy of any its outside legal counsel, that the failure to take such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case action would be inconsistent with the identity fiduciary duties of the person making such inquiry or proposalHCAC Board. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.05 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.05 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Hennessy Capital Acquisition Corp IV)
Exclusivity. (a) From Following the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination execution of this Agreement, neither The Limited, Inc., a Delaware corporation ("The Limited," together with FS Equity Partners II, L.P., a Delaware limited partnership, FS Equity Partners III, L.P., a Delaware limited partnership, FS Equity Partners International, L.P., a Delaware limited partnership, the Company shall not"Principal Stockholders"), and shall direct its Representatives not tonor the directors, officers, affiliates, employees, representatives or agents of any of them, shall, directly or indirectly, (A) solicit, negotiate with, provide engage in any nonpublic information regarding the Company’s businessprocess to sell, or enter into otherwise dispose of any Contract withinterest in or encumber any of Shares of Common Stock, to any corporation, partnership, person, or other entity or group (including, without limitation, any sale in a public offering, underwritten or otherwise, or other sale to the public market), or engage in any manner knowingly encourageaction in conflict with this Agreement, provided, however, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise Brylane director may participate in any discussions regardingnegotiation regarding a merger, acquisition or furnish other business combination of Brylane and its subsidiaries, as a whole (collectively, a "Third Party Transaction"), to any person any information with respect to, or cooperate in any way the extent advised by outside counsel to the Company that failure to take such action would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)such director's fiduciary duty under Delaware law and if and only if, Brylane's entry into such negotiations regarding such Third Party Transaction has been approved by the Independent Directors. The Company shallNeither Seller nor any of its officers, and directors, employees, affiliates, representatives or agents, shall direct its Representatives todirectly or indirectly solicit any Third Party Transaction or provide any non-public information regarding Brylane to any corporation, immediately cease partnership, person or other entity or group. To the extent Seller becomes aware of a Third Party Transaction or any and all existing discussions or negotiations with any person conducted heretofore proposal with respect to any Alternative Transaction. The Company also agrees that thereto, it will shall promptly request each person notify PPR.
(other than i) To the parties hereto and their respective Representatives) that has prior to extent Brylane consummates a Third Party Transaction between the date hereof executed and the Closing Date which provides a confidentiality agreement in connection with itshigher value per Share than the Purchase Price, his or her consideration of acquiring (ii) this Agreement is terminated because the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions condition set forth in this Section 7.05(a6.2(b) by is no longer satisfied or any other condition is not satisfied as a result of a pending, proposed or contemplated Third Party Transaction, then, in each case, if PPR does not acquire the Company Shares hereunder and Seller sells or its Representatives exchanges the Shares in a Third Party Transaction, Seller shall be deemed pay to PPR the difference between the fair market value of the consideration received per Share in the Third Party Transaction less the Purchase Price for the Shares sold or to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05sold hereunder.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) or the termination of this Agreement, the Company shall will not, Contributor will not, and shall direct will cause the Company, its Representatives Subsidiaries and any of its or their respective Affiliates and any of its and its Affiliates’ Representatives, not to, take any action, directly or indirectly, (A) to initiate, solicit, negotiate facilitate or encourage, participate in any discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with(including any letter of intent or confidentiality agreement), or in furnish to any manner knowingly encourageother Person any information with respect to, any proposal of, from any person (other than BCAC and its affiliates) Person relating to a potential an acquisition of any Interests in the Company or any of its Subsidiaries or all or substantially all of the equity interests or assets Assets of the CompanyCompany or any of its Subsidiaries. The Company and Contributor shall, whether by mergerand Contributor shall cause the Company and its Subsidiaries, any of its or their respective Affiliates and any of its and its Affiliates’ Representatives to, immediately cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Person (other than Buyer and its Affiliates) with respect to any of the foregoing. As promptly as practicable (and in any event within two (2) Business Days) after the date hereof, the Company shall send “return or destroy” letters to all other Persons to whom the Company or its Affiliates and professional advisors provided confidential information under or pursuant to a confidentiality or non-disclosure agreement in connection with the potential sale of stockall or part of the Company (any such confidentiality or non-disclosure agreement, sale of assets, business combination or otherwise (an a “Alternative TransactionTransaction Confidentiality Agreement”). From and after the Closing, the Company agrees to use its reasonable best efforts to enforce its rights under any such Transaction Confidentiality Agreement for the benefit of Buyer.
(Bb) enter into From the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Section 9.1, Buyer will not, and will cause its Affiliates and their respective Representatives not to, take any agreement regardingaction, continue directly or otherwise indirectly, to initiate, solicit, facilitate or encourage, participate in any discussions regardingor negotiations with, enter into any Contract (including any letter of intent or confidentiality agreement), or furnish to any person other Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, proposal from any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, Person relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representativesinvolving Buyer. BCAC Buyer shall, and shall cause its affiliates Affiliates and their respective Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Person (other than Buyer and its Affiliates) with respect to any of the Companyforegoing; provided, its stockholders that the ▇▇▇▇ ▇▇▇▇ Contribution Agreement and their respective affiliates the transactions contemplated thereby, the Riverstone Contribution Agreement and Representatives) conducted prior the transactions contemplated thereby and any financing with respect to the date hereof with respect to, transactions contemplated by the ▇▇▇▇ ▇▇▇▇ Contribution Agreement or which is reasonably likely to give rise to or result in, the transactions contemplated by the Riverstone Contribution Agreement shall not constitute a Business Combination Proposalbreach of the restrictions contained in this Section 6.16(b).
Appears in 1 contract
Sources: Contribution Agreement (Silver Run Acquisition Corp II)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, but only, in the Company case of the Buyer, except to the extent it determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Buyer Board, the Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” (within the meaning of Section 13(d) of the Exchange Act), concerning any sale of any material assets of such Party or any of the outstanding equity securities or any conversion, consolidation, liquidation, dissolution or similar transaction involving such Party or any of such Party’s Subsidiaries other than BCAC with the other Parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)8.5. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will promptly request each person Person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person Person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalbut only, including in each the case the identity of the person making Buyer, except to the extent it determines in good faith, after consultation with its outside legal counsel, that the failure to take such inquiry or proposalaction would be inconsistent with the fiduciary duties of the Buyer Board. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 8.5 by the Company a Party or any of its Subsidiaries or its or their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 8.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Aldel Financial Inc.)
Exclusivity. (a) From During the date of this Agreement Interim Period, the Seller and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notnot (and the Seller shall cause the Company not to), and none of them shall direct its permit any of their respective Affiliates or Representatives not acting on their behalf to, directly or indirectly, (Aa) solicit, negotiate initiate, seek or encourage any expression of interest, inquiry, offer, or proposal from, (b) initiate or participate in any discussions or negotiations with, provide (c) furnish or cause to be furnished any nonpublic information regarding the Company’s businessor documentation to, or (d) accept any offer from or enter into any Contract agreement or understanding with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Buyer and its affiliatesAffiliates and Representatives) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyany merger, whether by mergerconsolidation, recapitalization, reorganization, sale of stockassets (other than sales of Inventory in the Ordinary Course of Business or the disposition of obsolete and fully-depreciated assets not used in the Business during the twelve (12) months preceding the date hereof), sale of assetsequity interests, or other business combination or otherwise involving the Business, the Purchased Stock, and/or the Company (each, an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, Seller and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Seller shall cause the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalto), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and cause their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Affiliates and Representatives to, (i) immediately cease any and cause to be terminated all existing discussions discussions, negotiations, or negotiations other activities with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect toto any Alternative Transaction and (ii) promptly request the return or destruction of all confidential information provided to any other Person pursuant to a confidentiality agreement or otherwise in connection with any such discussions, negotiations, or other activities. The Seller shall promptly (and in any event within twenty-four (24) hours of receipt) notify Buyer in writing upon receipt by the Seller or the Company, or any of their respective Affiliates or Representatives, of any inquiry, offer, or proposal regarding an Alternative Transaction, which is reasonably likely to give rise to notice shall include the identity of the Person making such inquiry, offer or result in, a Business Combination Proposalproposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into acquisition of 5% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 5% or more of the combined voting power of the Company or (3) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 5% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with Parent and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a6.4(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Parent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a6.4(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a6.4(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC Parent shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Parent shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Seller shall (and shall cause the Company and its Subsidiaries, and it and their directors, officers, employees, stockholders, agents and other representatives or Persons acting on it or their behalf (“Representatives”)) to immediately cease and cause to be terminated any such negotiations and discussions with third parties (other than Buyer) regarding (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all any material portion of the business, properties, assets or technologies of the Company or any of its Subsidiaries, or any amount of equity interests securities the Company or of any Subsidiary (whether or not outstanding), in any case whether by merger, consolidation, amalgamation, purchase of assets or stock, tender or exchange offer, license or otherwise (other than the sale of products and services in the ordinary course of business or the licensing of intellectual property in connection therewith), (ii) any joint venture or other strategic investment in or involving the Company or any of its Subsidiaries, including any new financing, investment round or recapitalization of the Company, whether by mergeror (iii) any transaction that would expressly require the Company to abandon the transactions contemplated herein (each of the transactions described in the preceding clauses (i), sale of stock, sale of assets, business combination or otherwise (ii) and (iii) being referred to herein as an “Alternative Transaction”). For the avoidance of doubt, the transactions set forth Section 6.01 of the Disclosure Schedule shall not constitute Alternative Transactions hereunder to the extent negotiated, entered into and consummated in accordance with the descriptions thereof as set forth on such schedule.
(Bb) enter into During the period from the date of this Agreement through the Closing or the earlier termination of this Agreement pursuant to Section 9.01, Seller shall not (and shall cause the Company and its Subsidiaries and it and their Representatives not to) take or permit any agreement regardingaction to:
(i) solicit, continue or otherwise participate in any discussions regardinginitiate, or furnish to any person provide any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Person (other than Buyer and its representatives) concerning, knowingly encourage or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing engage in discussions or negotiations with any person conducted heretofore with respect Person concerning or in a manner reasonably likely or intended to facilitate, an Alternative Transaction;
(ii) disclose any information not customarily disclosed to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than concerning the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsbusiness, his properties, assets or her consideration technologies of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries, or afford to any inquiry Person access to their respective properties, assets, technologies, books or records, not customarily afforded such access;
(iii) assist or cooperate with any person to make any inquiry, offer, proposal or indication of interest regarding any Alternative Transaction; or
(iv) enter into any Contract with respect to any person providing for an Alternative Transaction at or otherwise consummate any time prior to Alternative Transaction.
(c) In the Closingevent that Seller, then Lender or the Company or any of its Subsidiaries or their respective Representatives shall receive any inquiry offer, proposal or indication of interest regarding a potential Alternative Transaction, or any request for disclosure of information or access of the type referenced in Section 6.05(b)(i), Seller, Lender, the Company or such Subsidiary or Representative shall promptly (and in no any event later than one (1within 24 hours) Business Day after notify Buyer thereof, which notice shall include, to the Company become aware extent permitted by applicable Law, the identity of the party making any such inquiry, offer, proposal, indication of interest or request, and the specific terms of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or inquiry, offer, proposal, and will provide BCAC with indication or request, as the case may be (including a copy of any written material and electronic communications received from such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties third party).
(d) The Parties agree that any violation of irreparable damage would occur in the restrictions set forth in this Section 7.05(a) by event that the Company or its Representatives shall be deemed to be a breach provisions of this Section 7.05(a) 6.05 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the Company. For clarityParties that Buyer shall be entitled to an immediate injunction or injunctions, without the Company may inform necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any person making an unsolicited proposal regarding an Alternative Transaction bond or other security, to prevent breaches of the terms provisions of this Section 7.05.
(b) From 6.05 and after to enforce specifically the date hereof until the Effective Time or, if earlier, the termination terms and provisions of this AgreementAgreement in any court of the United States or any state having jurisdiction, BCAC 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 this being in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating addition to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions remedy to which Buyer may be entitled at law or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalin equity.
Appears in 1 contract
Exclusivity. The Parent and the Vendors agree that from the date hereof until the earlier of: (a) From if the Agreement is terminated other than pursuant to Section 9.1(a)(iv), then the Business Day following the date of this Agreement and ending on the earlier of (i) the Closing such termination, and (iib) if the termination Agreement is terminated pursuant to Section 9.1(a)(iv), then ten (10) Business Days following the date of this Agreementsuch termination, the Company shall not, and shall direct its Representatives not toneither they nor any of their affiliates will, directly or indirectly, (A) solicitexcept as expressly permitted by the following sentence, negotiate withsell, provide any nonpublic information regarding the Company’s businesstransfer or dispose of, or enter into any Contract withagree to sell, transfer or in any manner knowingly encourage, any proposal dispose of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingPurchased Shares, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 encourage any inquiries or negotiations proposals from, discuss or negotiate with, or enter into any agreement agreement, arrangement or understanding with, any Person (in each case, other than the Purchaser) relating to any sale, transfer or encouragedisposition of the Purchased Shares (each, responda “Competing Transaction”), provide information or take any other action of any kind which would reasonably be regarded as likely to reduce the success of, or commence due diligence materially delay or interfere with respect the completion of, the transactions contemplated by this Agreement. The Parent and the Vendors will be permitted to sell, transfer or dispose of, or agree to sell, transfer or dispose of, Purchased Shares pursuant to pro rata dispositions (in the aggregate) by the Vendors pursuant to share repurchase programs of MIC in effect from time to time provided that the price of any sale, transfer or disposition is below the Purchase Price. The Parent and the Vendors will, and will cause each of their respective affiliates to, immediately cease and terminate, and cause to be terminated, any person solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Company, its stockholders and/or Purchaser) with respect to 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 interestoffer that constitutes, written or oral relating may reasonably be expected to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives constitute or lead to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalCompeting Transaction.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company Seller shall not, and shall direct cause its Affiliates and Representatives not to, directly or indirectly, (Ai) solicit, negotiate withseek, provide any nonpublic information regarding the Company’s businessinitiate, or enter into any Contract with, or in any manner knowingly encourage, support or facilitate any proposal ofinquiries, expressions of interest, proposals, offers or the making of any person (other than BCAC and its affiliates) relating to a potential acquisition of all proposals or substantially all of the equity interests offers from any Person or assets of the Company, whether by group concerning any merger, sale (including structured as an asset sale (but for the avoidance of stockdoubt, sale does not include permitted dispositions of assetsAssets as provided in Section 6.01(b)(vi)), consolidation, business combination combination, joint venture, recapitalization, liquidation, dissolution, change of control or otherwise other similar transaction involving or concerning any of the Business, Holding Companies or Company Subsidiaries or any of their respective Equity Interests, the Business or the Assets (an any such inquiry, proposal or offer, a “Alternative Competing Transaction”), (Bii) enter into any agreement regarding, continue have or otherwise participate in any discussions regardingwith or provide any information or data to any Person or group relating to, engage in any negotiations concerning, or furnish facilitate any effort or attempt to any person any information with respect to, make or cooperate in any way that would otherwise reasonably be expected to lead toimplement, any Alternative Competing Transaction or (Ciii) commenceaccept, continue execute or renew enter into any due diligence investigation regarding any Alternative Transaction; providedletter of intent, that the executionterm sheet, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallagreement in principle, and shall direct its Representatives toacquisition agreement or other similar binding or nonbinding agreement, immediately cease any and all existing discussions arrangement or negotiations with any person conducted heretofore with respect understanding (whether written or oral) related to any Alternative Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and Immediately after the date hereof until the Effective Time or, if earlier, the termination execution and delivery of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Seller shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease and terminate (and during the Pre-Closing Period will not, directly or indirectly, resume or otherwise continue) any and all existing current discussions or negotiations with any person Person or its Representatives (other than with the Company, Purchaser and its stockholders Affiliates and its and their respective affiliates and Representatives) conducted prior to concerning any Competing Transaction. During the date hereof with respect toPre-Closing Period, the Seller will notify Purchaser of any Competing Transaction which the Seller or which is reasonably likely to give rise to any of its Affiliates or result inRepresentatives may receive or become aware of within twenty-four (24) hours of receipt thereof. Such notice will indicate the identity of the Person(s) making the Competing Transaction and describe in reasonable detail the terms and conditions of such Competing Transaction and, a Business Combination Proposalif in written form, copies thereof.
Appears in 1 contract
Exclusivity. (a) From During the date Interim Period, none of this Agreement and ending on the earlier Company, any other Group Company or the Securityholder Representative will, nor will it authorize or permit any of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its respective Representatives not or Securityholders to, directly or indirectly, : (Ai) solicit, negotiate withinitiate, provide seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any nonpublic information regarding the Company’s businessinquiry, expression of interest, proposal or offer that constitutes, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, an Acquisition Proposal; (ii) enter into, participate in, maintain or continue any Alternative Transaction communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal; (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal; or (Cv) commence, continue or renew submit any due diligence investigation regarding Acquisition Proposal (other than the First Merger to the extent contemplated by this Agreement) to the vote of any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation stockholders of the Transactions shall not be deemed a violation of this Section 7.05(a)Company. The Company and the Securityholder Representative shall, and the Company shall direct its Representatives cause each other Group Company to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person Persons conducted heretofore prior to or on the date hereof with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Proposal.
(b) From The Company or the Securityholder Representative, as the case may be, shall immediately notify Parent orally and in writing after receipt by the date hereof until Company, any other Group Company or the Effective Time Securityholder Representative (or, if earlierto the knowledge of the Company or the knowledge of the Securityholder Representative, the termination of this Agreement, BCAC shall not take, nor shall it permit by any of its affiliates respective Representatives or Representatives to takeSecurityholders), whether directly of: (i) any Acquisition Proposal; (ii) any inquiry, expression of interest, proposal or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withoffer that constitutes, or enter into would reasonably be expected to lead to, an Acquisition Proposal; (iii) any other notice that any Person is considering making an Acquisition Proposal; or (iv) any request for nonpublic information relating to the Company or any other Group Company or for access to any of the properties, books or records of the Company or any other Group Company by any Person other than Parent not in the ordinary course of business or that the Company or the Securityholder Representative reasonably believes would not be expected to lead to an Acquisition Proposal. Such notice shall describe: (A) the terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request; and (B) the identity of the Person or group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request, if such disclosure would not violate the terms of a confidentiality agreement within effect as of the date hereof. The Company and the Securityholder Representative shall keep Parent fully informed of the status and details of, or encourage, respond, provide information to or commence due diligence with respect and any modification to, any person (other than the Companysuch inquiry, its stockholders and/or any expression 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, inquiryinterest, proposal or indication offer and any correspondence or communications related thereto and shall provide to Parent a complete and correct copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide Parent with forty-eight (48) hours prior notice (or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted such lesser prior notice as is provided to the date hereof with respect to, members of such board of directors) of any meeting of the Company Board or any other Group Company at which such board of directors is reasonably likely expected to give rise to or result in, a Business Combination discuss any Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From Each Seller Party and the date of this Company agree that between the Agreement Date and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, such Seller Party and the Company shall not, and each shall direct its take all action necessary to ensure that their respective Affiliates and Representatives not toshall not, directly or indirectly, (A) solicita)solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesi) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or ownership interest of the Company or assets of the Company, whether by other than inventory to be sold in the Ordinary Course, (ii) to enter into any merger, sale of stock, sale of assets, consolidation or other business combination involving all or otherwise any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company or (an “Alternative Transaction”iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving all or any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company (the foregoing clauses (i), (Bii) enter into any agreement regardingand (iii), continue a “Company Sale Transaction”) (for the avoidance of doubt, a Company Sale Transaction shall exclude a Seller CIC Transaction and the Reorganization); or otherwise participate (b)participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. Each Seller Party and the Transaction Documents Company immediately shall cease and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative a Company Sale Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring Seller and/or the Company to return shall notify Purchaser promptly, but in any event within 24 hours, orally and in writing if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at any time prior a Company Sale Transaction, is made. Any such notice to the Closing, then the Company Purchaser shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or other contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting Each Seller Party and the Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which such Seller Party or the Company is a party relating to a Company Sale Transaction, without the prior written consent of Purchaser. Notwithstanding the foregoing, the parties agree that any violation of the restrictions set forth nothing in this Section 7.05(a6.3 or any other provision in this Agreement shall prohibit or limit a Seller Party from soliciting, initiating, considering, encouraging or accepting any other proposals or offers or participating in any discussions, conversations, negotiations or other communications regarding a Seller CIC Transaction with any third-party (and from consummating any such Seller CIC Transaction) by provided that any such Seller CIC Transaction does not prevent, prohibit, challenge or materially hinder or delay the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction consummation of the terms of this Transaction. -51- Section 7.056.4.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Equity Purchase Agreement
Exclusivity. (a) From the date of this Agreement and ending on Date through the earlier of (i) the Closing and (ii) or the valid termination of this Agreement, the Company Company, on behalf of itself and the ▇▇▇▇ Entities, and each Seller Party, agrees that such Person shall not, and shall direct its cause their members, managers, agents, advisors and other Representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessknowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, respond to the submission of any proposal of, or offer from any person Person (other than BCAC with Purchaser and its affiliatesRepresentatives) relating to a potential (a) the acquisition of all or substantially all any equity interests of the equity interests ▇▇▇▇ Entities, (b) any re- capitalization, merger, consolidation, or other business combination involving the ▇▇▇▇ Entities, or (c) or the sale, lease, exchange or other disposition of any significant portion of the ▇▇▇▇ Entities’ properties or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions regarding, or negotiations regarding or furnish to any person any other Person and information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or (C) commenceenter into any agreement with respect to a Competing Transaction. The Company, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance on behalf of this Agreement itself and the Transaction Documents ▇▇▇▇ Entities, and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company each Seller Party, agrees that such Person shall, and shall direct its cause their members, managers, agents, advisors and other Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto Purchaser and their respective its Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior a Competing Transaction. In addition to the Closingother obligations under this Section 7.5, then the Company and the Seller Parties, as applicable, shall promptly (and in no any event later than one (1within 2 Business Days after receipt thereof by any ▇▇▇▇ Entity, any Seller Party, or any of their Representatives) Business Day after advise the Company become aware of such inquiry or proposal) notify such person Purchaser in writing that the Company is subject to an exclusivity agreement of any inquiry, proposal or offer from any Person regarding a Competing Transaction, any request for information with respect to a Competing Transaction, or any inquiry that the sale board of directors of any ▇▇▇▇ Entity or Seller Party (as applicable) in good faith believes would reasonably be expected to result in a proposal or offer for a Competing Transaction, the material terms and conditions of such request or inquiry (including the proposed terms of the Company that prohibits it from considering such inquiry or proposalCompeting Transaction), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposalthe same. Without limiting the foregoing, the parties The Parties hereto agree that any violation of the restrictions set forth in rights and remedies for noncompliance with this Section 7.05(a) 7.5 shall include having such provision specifically enforced by the Company any court having equity jurisdiction, it being acknowledged and agreed that any such breach or its Representatives shall be deemed to be a threatened breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior irreparable injury to the date hereof with respect to, or which is reasonably likely Purchaser and that money damages would not provide an adequate remedy to give rise to or result in, a Business Combination Proposalthe Purchaser.
Appears in 1 contract
Sources: Equity Purchase Agreement (Insight Enterprises Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and Closing, (iib) the termination of this AgreementAgreement pursuant to Article X and (c) the date on which Fortive (as defined in the Shareholders’ Deed) validly delivers a Fortive Option Exercise Notice (as defined in the Shareholders’ Deed) to the Company in accordance with the Shareholders’ Deed (a “Fortive Notice”) (provided that if such Fortive Notice is revoked or withdrawn by Fortive and the Fortive Waivers are obtained, the Company following restrictions shall be reinstated), the Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries, indications of interest, offers or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any information to, or otherwise cooperate in any way with, any proposal of, any person (Person or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or assets of the CompanyExchange Act, whether by merger, sale of stock, sale of assets, business combination or otherwise (concerning an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a8.05. For purposes of this Agreement, an “Alternative Transaction” shall mean (A) with respect to the Company, (x) the issuance, sale or transfer to or investment by any Person in any newly issued or currently outstanding equity interest in the Company, (y) the sale or transfer of the assets of the Company and its Subsidiaries to any Person (except, in the cases of clauses (x) and (y), with respect to any de minimis transfers of equity interests or assets or any issuance, sale, transfer, investment of equity interests or assets permitted by the terms of this Agreement), or (z) any merger or business combination between the Company or any of its Subsidiaries, on the one hand, and any other Person, on the other hand and (B) with respect to SPAC, any direct or indirect acquisition of assets of business of any person, whether by way of a purchase of assets or securities or merger, consolidation or otherwise, such as the “initial business combination” under SPAC’s initial IPO prospectus with any third party; provided, that, with respect to the Company, none of the following shall constitute an Alternative Transaction: (I) any de minimis transfers of equity interests or assets or any issuance, sale, transfer, investment of equity interests or assets permitted by the terms of this Agreement or the Share Transfer Agreement; (II) the issuance of any newly issued equity interest in the Company as part of a capital raising of up to approximately $35 million in or around June 2021; (III) the issuance of any newly issued equity interest in the Company as part of a capital raising of up to approximately $20 million in or around December 2021; (IV) the issuance of any newly issued equity interest in the Company where the directors of the Company determine that an injection of funds is reasonably necessary to ensure that the Company is able to pay its debts (and the debts of its subsidiaries) as and when they fall due; (V) the issuance of any newly issued convertible notes which will convert into ordinary shares in the Company as part of a capital raising of up to approximately $75 million; (VI) any such sale or transfer made in accordance with clause 19 of the Shareholders’ Deed; and (VII) any transaction approved by SPAC in writing; provided, further, that, any such issuance pursuant to the foregoing clauses (I) to (V) shall be made in accordance with and subject to any conditions imposed under the Commitment Agreement and the Share Transfer Agreement with such conditions being applicable to the Company for purposes of this Agreement. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will shall promptly request each person Person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information confidential information furnished to such person Person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the earlier of (a) Closing, (b) the termination of this Agreement pursuant to Article X and (c) the valid delivery of a Fortive Notice (unless and until such Fortive Notice has been revoked or withdrawn by Fortive and the Fortive Waivers are obtained), then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 8.05 by the Company a Party or any of its Subsidiaries or its or their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 8.05 by such Party. The Parties agree that this Section 8.05 shall supersede the Company. For clarity, exclusivity provisions included in that certain Letter of Intent entered into by and among SPAC and the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction dated March 5, 2021 in its entirety and such exclusivity provisions shall be terminated as of the terms of this Section 7.05date hereof.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Decarbonization Plus Acquisition Corp II)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Seller shall not, and shall direct cause its Affiliates (including the Company and its Subsidiaries) and instruct their respective Representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide facilitate or encourage any nonpublic information regarding the Company’s businessoffer or proposal for, or indication of interest in, an Alternative Transaction from any Person, (b) engage in, continue, facilitate, encourage or otherwise participate in discussions or negotiations with any Person in respect of an Alternative Transaction, (c) furnish or cause to be furnished to any Person any information concerning the Company or its Subsidiaries in connection with an Alternative Transaction, (d) enter into any Contract withwith any Person setting forth the terms and conditions for an Alternative Transaction (including any letter of intent, agreement, agreement in principle or in any manner knowingly encouragememorandum of understanding) or similar agreement, any proposal of, any person arrangement or understanding setting forth the terms and conditions of an Alternative Transaction or (other than BCAC and its affiliatese) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to lead do or seek any of the foregoing. The Seller and the Company further agree to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to cause their Affiliates to, immediately cease suspend and terminate, and to use reasonable best efforts to cause their respective Representatives to immediately suspend and terminate, any activities that would be prohibited by the foregoing as of the execution and delivery of this Agreement, including suspending and terminating any and all existing discussions or negotiations with any person conducted heretofore with respect Person or group of Persons (other than Purchaser and its Affiliates) regarding an Alternative Transaction and any and all access (whether through an electronic dataroom or otherwise), and shall cease to provide, to any such Person or group any non-public or proprietary information of or relating to the Company and any of its Subsidiaries regarding an Alternative Transaction. The Company also agrees that it will promptly request each person (other than Neither the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring Seller nor the Company shall, and they shall cause their Affiliates to return or destroy all Confidential Information furnished instruct their Representatives not to, respond to any inquiry made by any Person concerning any such person by or on behalf of it, him or her Alternative Transaction (including Persons with whom the Representatives may have had discussions prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect ), except to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of advise such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale Person of the Company that prohibits it from considering such inquiry or proposal, limitations and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach 7.18. For purposes of this Section 7.05(a) by the Company. For clarity7.18, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC a “Person” shall not take, nor shall it permit any of include Purchaser or its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) hereof until the termination of this Agreement, Agreement (the Company “Exclusivity Period”):
(a) Sellers and the Target Companies shall not, and shall direct its Representatives not permit any of their Affiliates, directors, officers, employees, representatives or agents of Sellers or the Target Companies (collectively, the “Company Representatives”) to, directly or indirectly, (Ai) solicitdiscuss, negotiate withnegotiate, provide any nonpublic information regarding the Company’s businessundertake, initiate, authorize, recommend, propose or enter into any Contract withinto, whether as the proposed surviving, merged, acquiring or in any manner knowingly encourageacquired corporation or otherwise, any proposal oftransaction involving a merger, any person (other than BCAC and its affiliates) relating to a potential acquisition of all consolidation, business combination, purchase or substantially all disposition of the equity interests Business or any material amount of the assets of the Company, whether Target Companies or any capital stock or ownership interests of the Target Companies other than the transactions contemplated by merger, sale of stock, sale of assets, business combination or otherwise this Agreement (an “Alternative Acquisition Transaction”), (Bii) enter into facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transactions, (iii) furnish or cause to be furnished, to any agreement regardingPerson, continue any information concerning the business, operations, properties or otherwise participate assets of the Target Companies in any discussions regardingconnection with an Acquisition Transaction, or furnish to any person any information with respect to, or (iv) otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, facilitate or encourage, any Alternative Transaction effort or attempt by any other Person to do so or seek any of the foregoing.
(Cb) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement Sellers and the Transaction Documents Target Companies shall (and Sellers and the consummation of the Transactions Target Companies shall not be deemed a violation of this Section 7.05(a). The cause their Company shall, and shall direct its Representatives to, ) immediately cease and cause to be terminated any and all existing discussions or negotiations with with, or any person provision of access to their property, books and records or non-public information and data to, any Persons (other than Purchaser) conducted or provided heretofore with respect to any Alternative Acquisition Transaction. The Company also agrees that it will promptly request each person (other than Sellers and the parties hereto Target Companies shall not release any third party from the confidentiality and their respective Representatives) that has prior standstill provisions of any agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company which Seller or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company Target Companies is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the Closing or the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to the terms and conditions hereof, none of the Acquired Companies, the Company shall not, and shall direct its Representatives not to, directly Seller or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his Affiliates shall take or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of other Person on its affiliates or Representatives behalf to take, whether directly or indirectly, take any action to solicitencourage, initiate, continue initiate or engage in discussions or negotiations with, or enter into provide any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Buyer and Buyer’s Representatives) concerning any purchase of the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result inAcquired Securities, any offermerger or recapitalization involving the Acquired Companies, inquiry, proposal any sale of all or indication substantially all of interest, written the assets of the Acquired Companies or oral relating to any business combination transaction
similar transaction involving the Acquired Companies (a “Business Combination Proposal”) other than with assets sold in the Companyordinary course of business, its stockholders and their respective affiliates and Representativessubject to the provisions of Section 8.2). BCAC The Seller shall, and shall cause its affiliates all of the Acquired Companies and their respective Representatives to, immediately cease terminate any and all existing negotiations or discussions or negotiations with any person third party regarding any proposal concerning any purchase of the Acquired Securities, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all the assets of the Acquired Companies or other similar transaction and terminate the access of any Person (other than Buyer or its Representatives) to any electronic or virtual data room maintained in connection with any of the foregoing. The Company shall promptly (and in any event within 48 hours of the occurrence of the relevant event) notify the Buyer orally and in writing if any bona fide inquiries, proposals or requests for information concerning any purchase of the Acquired Securities, any merger or recapitalization involving the Acquired Companies, any sale of all or substantially all the assets of the Acquired Companies or other similar transaction are received by the Company or any Representatives of the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Securities Purchase Agreement (Carlisle Companies Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) Until the termination of this Agreement, neither the Company Company, the Subsidiaries nor the Shareholders nor any of their respective directors, officers, employees, agents, representatives or shareholders (collectively, the "COMPANY GROUP") shall notinitiate, and shall direct its Representatives not solicit, entertain, negotiate, accept or discuss, or encourage inquiries or proposals (each, an "ACQUISITION PROPOSAL") with respect to, directly or indirectly, (A) solicit, negotiate with, provide furnish any nonpublic information regarding the Company’s businessrelating to or participate in any negotiations or discussions concerning, or enter into any Contract with, or in any manner knowingly encourageagreement with respect to, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition or purchase of all or substantially all a substantial portion of the equity interests business, assets, properties, capital stock or assets capital stock equivalents of the CompanyCompany or any of the Subsidiaries (a "POTENTIAL SALE"), whether by merger, combination, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)otherwise, (B) or enter into any agreement regardingagreement, continue arrangement or otherwise participate in any discussions regardingundertaking requiring it to abandon, terminate or furnish fail to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that consummate the execution, delivery and performance of transactions contemplated by this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Agreement. The Company and the Shareholders shall, and shall direct its Representatives cause each other member of the Company Group to, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (parties, other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsPurchaser, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect toto 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 which its potential financing sources). The Company represents that it is reasonably likely to give rise not a party to or result inbound by any agreement with respect to an Acquisition Proposal other than under this Agreement. The Company and the Subsidiaries shall cause their officers, a Business Combination Proposaldirectors, 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) grant or enter into any Encumbrance, power of attorney or other agreement or arrangement with respect to the voting of such holder's shares of Company Capital Stock, (ii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any Contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of any of such shares of Company Capital Stock or (iii) take any other action that would in any way restrict, limit or interfere with the performance of such Person's obligations hereunder or the transactions contemplated hereby.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement in accordance with its terms, the Company Seller shall not, and shall direct its cause the Seller Group, their respective Affiliates and their respective Representatives not to, directly or indirectly, indirectly (Ai) solicit, negotiate withinitiate or knowingly encourage (including by way of furnishing non-public information), provide facilitate or participate in any nonpublic information regarding inquiries or the Company’s businessmaking of any proposal that constitutes, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating could reasonably be expected to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (lead to an “Alternative Transaction”)Proposal, (Bii) enter into any agreement regardinginto, continue or otherwise participate in any discussions or negotiations regarding, or furnish to assist or participate in any person effort or attempt by any information Person with respect to, any Alternative Proposal. None of the Seller, any member of the Seller Group, their respective Affiliates and their respective Representatives shall release any third party from, or cooperate waive any provision of, any confidentiality agreement with respect to the Business to which it is a party and which was entered into with respect to any potential Alternative Proposal. The Seller shall, and shall cause the other members of the Seller Group and their respective Affiliates and Representatives to, with respect to third parties with whom discussions or negotiations with respect to an Alternative Proposal have been terminated on or prior to the date of this Agreement, use its commercially reasonable best efforts to obtain the return or destruction of, in accordance with the terms of the applicable confidentiality agreement, confidential information previously furnished by the Seller or any way of its Affiliates or its or their Representatives, with respect to the Business.
(b) The Seller will promptly notify Purchaser after it or any of its Affiliates has received any proposal, inquiry, offer or request relating to or constituting, or that would otherwise could reasonably be expected to lead to, an Alternative Proposal, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing request for discussions or negotiations with negotiations, or any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior for information relating to the date hereof executed a confidentiality agreement Business in connection with its, his an Alternative Proposal or her consideration of acquiring the Company to return a potential Alternative Proposal or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior for access to the date hereof. If properties or books and records thereof in furtherance of or relating to an Alternative Proposal of which the Company Seller or any of its Representatives receives Affiliates is or becomes aware, or any inquiry or proposal with respect to an Alternative Transaction at any time prior amendments to the Closing, then the Company foregoing. Such notice to Purchaser shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case indicate the identity of the person Person making such inquiry or proposal and the material terms and conditions of such proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalany.
Appears in 1 contract
Sources: Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company shall not, and shall direct cause its Representatives controlled Affiliates, Subsidiaries and its and their representatives, officers, agents, Affiliates, equityholders and any other person acting on its behalf (the “Related Parties”), not to, directly or indirectly, (Ai) solicitsolicit or take any action to facilitate or encourage any inquiries or the making, negotiate with, provide any nonpublic information regarding the Company’s business, submission or enter into any Contract with, or in any manner knowingly encourageannouncement of, any proposal of, or offer from any person (Person or group of Persons other than BCAC Nocturne and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Sponsor, (Bwith respect to the PIPE Investment) the PIPE Investors and (with respect to the Note Investment) the Note Investors (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or would reasonably be expected to lead to, a Competing Transaction; (ii) enter into any agreement regardinginto, participate in, continue or otherwise participate in engage in, any discussions regardingor negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through the Data Room) any information relating to the Company or any of its assets or businesses, or furnish afford access to any person any information the assets, business, properties, books or records of the Company to a Competing Buyer, in all cases for the purpose of assisting with respect toor facilitating, or cooperate in any way that would otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Alternative Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (Cincluding any letter of intent or term sheet) commence, continue relating to a Competing Transaction or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)publicly announce an intention to do so. The Company shall, and shall direct cause its Representatives Related Parties, and its and their representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalCompeting Transaction.
(b) During the Pre-Closing Period, subject to the right to withdraw or modify the Nocturne Board Recommendation in accordance with Section 6.10(b), Nocturne shall not, and shall cause its Related Parties not to, 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 its representatives, acting in their capacity as such) (an “Alternative Target”) that may constitute or could reasonably be expected to lead to, a Nocturne Competing Transaction, (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Alternative Target regarding a Nocturne Competing Transaction; (iii) furnish (including through the Data Room) any non-public information relating to Nocturne or any of its assets or businesses, or afford access to the assets, business, properties, books or records of Nocturne 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 Nocturne Competing Transaction; (iv) approve, endorse or recommend any Nocturne Competing Transaction; or (v) enter into a Nocturne Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Nocturne Competing Transaction or publicly announce an intention to do so. Nocturne shall, and shall cause its Related Parties to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Nocturne Competing Transaction.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement to the Closing of the Third Instalment or the date on which this Agreement is terminated pursuant to the Section 8 (2), without the prior consent of the Investor, the Transferors shall not directly or indirectly (or through any third party), and ending on shall ensure that their respective affiliate and the earlier Group Companies (including the Listed Company) as of the Closing of the First Instalment shall not directly or indirectly (or through any third party) (i) solicit, initiate, consider, encourage or accept any proposal or offer made by any person or any entity in respect of the Closing following matters (i.e. matters referred to in (A), (B) and (ii) the termination of this AgreementC), the Company shall not, and shall direct its Representatives not to, directly or indirectly, collectively referred to as “Conflicting Transaction”): (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, acquire or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of purchase all or substantially all part of the equity interests or assets of the Group Companies (including the Listed Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)) from the Transferors, (B) enter into any agreement regardingmerger, continue consolidation or otherwise other business combination with the Group Companies (including the Listed Company), or acquire or purchase the material assets of the Group Companies (including the Listed Company), or propose any tender offer to the Group Companies (including the Listed Company), (C) enter into capital restructuring, structural restructuring, business restructuring or any other transaction that conflicts with the transactions contemplated under the Acquisition, with the Group Companies (including the Listed Company), or (ii) participate in any discussions regardingdiscussion, conversation, negotiation or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement communication with respect to the sale of Conflicting Transaction, or provide any information related to the Company that prohibits it from considering such inquiry above matters to any third party, or proposalallow any third party to proceed due diligence with respect to the Group Companies (including the Listed Company) for the Conflicting Transaction, and will provide BCAC with a copy or cooperate, assist, participate in or encourage any efforts or attempts of any such written inquiry or proposal or a detailed summary of third party to conduct the Conflicting Transaction in any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 withother way, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence arrangement with respect to, any person third party for the Conflicting Transaction. The Transferors shall immediately cease it (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates their affiliate and Representatives tothe Group Companies (including the Listed Company) to cease it immediately) and shall cause the termination of all discussions, immediately cease conversations, negotiations or other communications and provision or sharing of information in relation to any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted Conflicting Transaction initiated prior to the date hereof execution of this Agreement. The Transferors shall promptly notify the Investor of any proposal, offer, inquiry or other contacts made by any entity with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalthe Conflicting Transactions.
Appears in 1 contract
Exclusivity. (a) The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by the Company, or any of its Subsidiaries with respect to any proposed, potential or contemplated Company Transaction.
(b) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing Date and (ii) the termination of this AgreementAgreement (the "Exclusivity Period"), the Company shall not, and shall direct not permit any of its Subsidiaries or Affiliates or any of its or their directors, officers or Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s businesssolicit or initiate, or enter into any Contract with, or in any manner knowingly encourage, any proposal encourage the submission of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)offer, (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or cooperate in take any way other action to facilitate any inquiries or the making of any offer that would otherwise constitutes, or may reasonably be expected to lead to, any Alternative Transaction proposal or Company Transaction, other than a transaction with TPG, or (C) commenceauthorize, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 within, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence understanding with respect to, any person Company Transaction; provided that the Company may, in response to an unsolicited written proposal from a third party, engage in the activities specified in clause (other B) and (C) of this Section 5.6(b), if (x) in the opinion of the Company's outside legal counsel, such action is required for the Board of Directors to comply with its fiduciary duties under Colorado law, (y) the Company shall have notified the Purchasers not later than 24 hours after having received the relevant proposal for a Company Transaction (which notice shall identify the Person making the proposal and set forth the material terms thereof) and (z) the Company shall have refrained from taking any action specified in clause (C) of this Section 5.6(b) until the third day following the receipt by the Purchasers of the notification referred to in clause (y) of this Section 5.6(b). The Company will keep the Purchasers fully informed of the status and details of any such proposal or request and any related discussions or negotiations. The Company will promptly notify the Purchasers of any proposal (which notice shall identify the Person making the proposal and set forth the material terms thereof) that the Company, its stockholders and/or any of its Subsidiaries or Affiliates or any of its or their affiliates directors, officers or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with representatives may receive during the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalExclusivity Period.
Appears in 1 contract
Sources: Securities Purchase Agreement (TPG Advisors Iii Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and it shall direct its Affiliates and Representatives not toto take, whether directly or indirectly, any action to (Ai) solicit, negotiate initiate, continue or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofrespond to, or provide information to, any person Person (other than BCAC and Quantum or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger, recapitalization or similar business combination transaction, or any sale of all or substantially all of the equity interests or assets of involving the CompanyCompany and its Subsidiaries, whether by mergertaken as a whole (each such acquisition transaction, sale of stockbut excluding the Transactions, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Cii) commence, continue or renew any due diligence investigation regarding regarding, or that is reasonably likely to give rise to or result in, any Alternative offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that that, the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a10.03(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsrespect to, his or her consideration which is reasonably likely to give rise to or result in, an Acquisition Transaction. Furthermore, if the Company, any of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company its Subsidiaries or any of its their respective Representatives receives any inquiry or proposal with respect to an Alternative Acquisition Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one forty eight (148) Business Day hours after the Company become becomes aware of such inquiry or proposal) notify such person (1) advise Quantum orally and in writing that of such inquiry or proposal (including the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering Person making such inquiry or submitting such proposal, and the terms thereof) and (2) provide Quantum with a copy of such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including if in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05writing.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Quantum shall not take, nor shall it permit any of its affiliates 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, respondrespond to, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or shareholders or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders shareholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 10.03(b). BCAC Quantum shall, and shall cause direct its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal. If Quantum, any of its Affiliates or any of their respective Representatives receives any inquiry or proposal with respect to a Business Combination Proposal at any time prior to the Closing, then Quantum shall promptly (and in no event later than forty eight (48) hours after Quantum becomes aware of such inquiry or proposal) (1) advise the Company orally and in writing of such inquiry or proposal (including the identity of the Person making such inquiry or submitting such proposal, and the terms thereof) and (2) provide the Company with a copy of such inquiry or proposal, if in writing.
Appears in 1 contract
Sources: Merger Agreement (Quantum FinTech Acquisition Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct the Company permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and SPAC or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger or similar business combination transaction or sale of all or substantially all of the equity interests assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the ordinary course of business) (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions and the transactions contemplated by the other Transaction Agreements shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action 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, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SPAC shall not take, nor shall it permit any of its affiliates 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 Person (other than the Company, its stockholders and/or or any of their affiliates 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 transaction
Business Combination involving SPAC (a “Alternate Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions and the transactions contemplated by the other Transaction Agreements shall not be deemed a violation of this Section 8.03(b). BCAC SPAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a an Alternate Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date Interim Period, none of this Agreement and ending the Acquiror Parties, on the earlier of (i) the Closing and (ii) the termination of this Agreementone hand, or the Company shall notand its Subsidiaries, and shall direct its on the other hand, will, nor will they authorize or permit their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.:
(bi) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, take any action to solicit, initiate, continue initiate or engage in discussions or negotiations with, or enter into any binding agreement withwith any Person concerning, or encourage, respond, provide information which would reasonably be expected to or commence due diligence with respect lead to, an Acquisition Proposal;
(ii) in the case of Acquiror, fail to include the Acquiror Board Recommendation in (or remove from) the Registration Statement and the Proxy Statement; or
(iii) withhold, withdraw, qualify, amend or modify (or publicly propose or announce any person intention or desire to withhold, withdraw, qualify, amend or modify), in a manner adverse to the other Party, in the case of the Company, the Company Board Recommendation, and in the case of Acquiror, the Acquiror Board Recommendation.
(b) Each of the Company and the Acquiror Parties, shall promptly, and in any event within one (1) Business Day of the date of this Agreement:
(i) terminate access of any third Person (other than the Company, its stockholders Company or the Acquiror Parties and/or any of their affiliates respective Affiliates or Representatives), concerning, relating to Representatives 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 in connection with the PIPE Financing) to any business combination transactiondata room (virtual or actual) set up by the Company in connection with the Transactions or an Acquisition Proposal containing any confidential information with respect to the Company or Acquiror;
(a “Business Combination Proposal”ii) other than with the Company, its stockholders immediately cease and their respective affiliates and Representatives. BCAC shallcause to be terminated, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders their and their respective affiliates Subsidiaries’ Representatives to immediately cease and Representativescause to be terminated, all existing activities, discussions, negotiations and communications, if any, with any Persons with respect to any Acquisition Proposal; and
(iii) conducted prior shall promptly request the return or destruction of any confidential information provided to any Person in connection with a prospective Acquisition Proposal (subject in each case to the date hereof terms of any applicable confidentiality agreement) and, in connection therewith, shall, if the applicable confidentiality or non-disclosure agreement so allows, request that all such Persons provide prompt written certification of the return or destruction of all such information.
(c) Promptly upon receipt of an unsolicited Acquisition Proposal, each of the Acquiror Parties and the Company shall notify the other Party thereof, which notice shall include a written summary of the material terms of such unsolicited proposal. Notwithstanding the foregoing, the Parties may respond to any unsolicited Acquisition Proposal only by indicating that such Party has entered into a binding definitive agreement with respect to, to a business combination and is unable to provide any information related to such Party or which is reasonably likely to give rise to any of its Subsidiaries or result in, a Business Combination entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From In consideration of the date substantial expenditures of time and expense to be undertaken by Buyers in connection with the consummation of the transactions contemplated by this Agreement and Agreement, for a period ending on the earlier of (ia) the Closing and September 30, 2014, (iib) the termination of this AgreementAgreement or (c) the Second Closing, Sellers and the Equity Owner shall deal exclusively with Buyers with respect to the sale of the Purchased Assets, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessBusiness, or enter into any Contract withthe issuance of the equity interests of, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the assets or properties of, Sellers. In addition, during such time period, Sellers shall not, and shall direct their officers, directors, financial advisors, accountants, attorneys, and other Affiliates (collectively, together with Sellers and the Equity Owner, the "Selling Group") not to (a) solicit submission of proposals or offers from any Person other than Buyers (or their Affiliates) relating to any acquisition or purchase of all or any part of the equity interests, assets or properties of Sellers, the sale or issuance of any equity interests of Sellers or any entity formed by the Equity Owner or any Affiliate thereof to which any of the equity interests or any assets or properties of the CompanyBusiness may be contributed, whether or any merger or consolidation of any Seller or of any entity formed by mergerthe Equity Owner or its Affiliates to which any assets or properties of the Business may be contributed (each an "Acquisition Proposal"); provided, sale however, in no event shall the foregoing prohibit Sellers or the Equity Owner (or their Affiliates) from selling the assets and businesses of stock▇▇▇▇▇▇▇ Lubricant Works, sale of assetsLLC or CAM2 International, business combination LLC, (b) participate in any discussions or negotiations regarding, or furnish any information to any Person other than Buyers (and its representatives), or otherwise cooperate in any way or assist, facilitate, or encourage any Acquisition Proposal by any Person other than Buyers or (an “Alternative Transaction”), (Bc) enter into any agreement regardingor understanding, continue whether oral or otherwise participate in any discussions regardingwritten, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and prevent the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)transactions contemplated hereby. The Company shallEquity Owner and Sellers agree to (w) notify Buyers immediately if any member of the Selling Group receives any indication of interest, request for information, or offer in respect of an Acquisition Proposal, (x) inform the persons sending such indication, request, or offer that Sellers and the Business are bound by an exclusivity arrangement (without any reference to Buyers or its respective Affiliates), (y) communicate to Buyers in reasonable detail the terms of any such indication, request, or proposal, and shall direct its Representatives to, immediately cease any and (z) provide to Buyers copies of all existing discussions or negotiations with any person conducted heretofore with respect written communications relating to any Alternative Transactionsuch indication, request, or proposal. The Company also agrees Except as provided in the proviso contained in this paragraph above, the Equity Owner and Sellers represent that it will promptly request each person (other than no member of the parties hereto and their respective Representatives) that has prior Selling Group is a party to the date hereof executed a confidentiality or bound by any agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later Acquisition Proposal other than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of under this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing Effective Time and (ii) the termination of this AgreementAgreement pursuant to its terms, except for the transactions contemplated by this Agreement and the other Transaction Documents, the Company Company, the Equityholder Representative and the Equityholders shall not, and each shall direct its cause their respective Affiliates and Representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide any nonpublic information regarding the Company’s businessinitiate, or enter into any Contract with, regarding or in any manner knowingly encourage, entertain the submission of any proposal of, or offer from any person (other than BCAC and its affiliates) Person relating to a potential the direct or indirect acquisition of all or substantially all any of the equity interests in the Acquired Companies or all or any material portion of the assets of the CompanyAcquired Companies (other than the acquisition of inventory in the ordinary course of business), whether by in an acquisition structured as a merger, sale of stockbusiness combination, consolidation, exchange, sale of assets, business combination sale of stock or otherwise (an “Alternative Transaction”)otherwise, (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist, cooperate with or cooperate participate in or knowingly facilitate or knowingly encourage in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Person (other than Parent and Merger Sub) conducted heretofore with respect to any Alternative Transactionof the matters addressed in this Section 5.07. The Company also agrees In the event that it will promptly request each person any Acquired Company, the Equityholder Representative, or any of their respective Affiliates or Representatives, receives or becomes aware of any communication from any Person (other than the parties hereto and Parent, Merger Sub or their respective Affiliates and Representatives) that has prior to regarding any of the date hereof executed a confidentiality agreement matters addressed in connection with itsthis Section 5.07, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Acquired Company or any of its Representatives receives any inquiry Equityholder Representative (or proposal with respect to an Alternative Transaction at any time prior to the Closingrespective Affiliate or Representative), then the Company as applicable, shall promptly (and in no event later than one (124 hours after receipt thereof) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement provide Parent with respect to the sale written notice of the Company that prohibits it from considering such inquiry or proposalsame, and will provide BCAC with a copy which notice (unless prohibited by the terms of any such written inquiry confidentiality agreement in effect as of the date hereof or proposal or a detailed summary of any such verbal inquiry or proposal, including otherwise by Applicable Law) shall indicate in each case reasonable detail the identity of the person making offeror and the terms and conditions of such proposal, inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05contact.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, Seller, the Company and each Member shall not, and shall direct not permit any of his, her or its respective Affiliates or Representatives not to, directly or indirectly, (Aa) (i) initiate or continue any contact with, (ii) make, solicit, negotiate encourage or respond to any inquiries or proposals by, (iii) enter into or participate in any discussions or negotiations with, provide (iv) disclose, directly or indirectly, any nonpublic information regarding concerning the Business or properties of the Company or the Transactions to, or (v) afford any access to the Company’s businessproperties, books or enter into any Contract with, or in any manner knowingly encouragerecords to, any Person, in the case of each of clauses (i) through (v) above, in connection with any possible proposal of, regarding the direct or indirect sale of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all portion of the equity interests Equity Securities or assets of the Company, whether by merger, Company or Seller (other than the sale of stockinventory in the Ordinary Course of Business), sale of assetsa merger or consolidation involving the Company or Seller, business combination or otherwise any similar transaction, in each case except as contemplated by this Agreement (an “Alternative Transaction”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to accept any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 withfor, or encouragean Alternative Transaction. During the Pre-Closing Period, respondSeller, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders Company and their respective affiliates and Representatives. BCAC each Member shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease all discussions and actions which violate or conflict with this Section 5.05. During the Pre-Closing Period, Seller, the Company and each Member shall, promptly following receipt, give Buyer notice of any inquiry, communication or proposal regarding an Alternative Transaction (and all existing discussions or negotiations with any person (other than with the terms thereof) received by Seller, the Company, any Member or any of his, her or its stockholders respective Affiliates or Representatives. Seller and their respective affiliates each Member shall be responsible for any breach of this Section 5.05 by his, her or its Affiliates or Representatives. Seller, the Company and Representatives) conducted prior each Member represents that neither he, she or it nor any of his, her or its Affiliates or Representatives is a party to the date hereof or bound by any Contract with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.an Alternative Transaction
Appears in 1 contract
Sources: Unit Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Exclusivity. (a) From the date of this Agreement The Sellers and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Equity Holders shall not, and the Sellers shall direct its Representatives require each of their respective officers, directors, managers, employees, representatives and agents not to, directly or indirectly, (Ai) initiate, solicit, negotiate withencourage or otherwise facilitate any inquiry, provide proposal, offer or discussion with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person party (other than BCAC and its affiliatesthe Buyer) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyconcerning any merger, whether by mergerreorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, sale of assets, material assets or similar business combination transaction involving either of the Sellers or otherwise (an “Alternative Transaction”)any division thereof, (Bii) enter into furnish any agreement regardingnon-public information concerning the business, continue properties or otherwise participate in assets of either of the Sellers or any discussions regarding, or furnish division thereof to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction party (other than the Buyer) or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing engage in discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person party (other than the parties hereto and their respective RepresentativesBuyer) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of concerning any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05transaction.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC The Sellers shall not take, nor shall it permit immediately notify any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in party with which discussions or negotiations with, of the nature described in paragraph (a) above were pending that the Sellers are terminating such discussions or enter into negotiations. If the Sellers receive any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication offer of interestthe nature described in paragraph (a) above, written the Sellers shall, within one business day after such receipt, notify the Buyer of such inquiry, proposal or oral relating to any business combination transactionoffer, including the identity of the other party and the terms of such inquiry, proposal or offer.
(a “Business Combination Proposal”c) other than with Each of the Company, its stockholders Sellers and their respective affiliates and Representatives. BCAC shall, and shall the Company Equity Holders acknowledge that any breach or threatened breach of the provisions of this Section 4.6 will cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior irreparable injury to the date hereof with respect toBuyer for which an adequate monetary remedy does not exist. Accordingly, in the event of any such breach or which is reasonably likely threatened breach, the Buyer shall be entitled, in addition to give rise the exercise of other remedies, to seek and obtain injunctive relief, without necessity of posting a bond, restraining the Seller and/or the Company Equity Holders from committing such breach or result in, a Business Combination Proposalthreatened breach.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any sale of any material assets of such Party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such Party or any of such Party’s Subsidiaries other than BCAC with the other Parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Contemplated Transactions shall not be deemed a violation of this Section 7.05(a)4.5. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will promptly request each person (other than the parties Parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information confidential information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Contemplated Transactions that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC to the extent not inconsistent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity fiduciary duties of the person making such inquiry Board of Directors of FSI or proposalthe Company. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 4.5 by the Company a Party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 4.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Flexible Solutions International Inc)
Exclusivity. (a) From the date of Unless and until such time as this Agreement and ending on shall be terminated pursuant to Section 10.01 the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Seller Parties shall not, and shall direct its not permit their Representatives not to, directly or indirectly, indirectly (Aa) solicit, facilitate, initiate, encourage or entertain any inquiries, negotiations or proposals from, discuss or negotiate with, provide any nonpublic information regarding to or consider the Company’s business, merits of any inquiries or proposals from or enter into any Contract with, or in agreement with any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesPurchaser) relating to a potential acquisition any business combination transaction involving any Group Company or the sale or transfer of any Equity Interest in the Company or of all or substantially all a portion of the equity interests Business, other than sales of inventory in the Ordinary Course of Business, including tender offer, license, the merger, recapitalization or assets consolidation of the Company, whether by merger, Company Group or the sale of stock, sale of assets, business combination the Business or otherwise the Units or (an “Alternative Transaction”), (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person (other than Purchaser) any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, facilitate or encourage, any Alternative Transaction effort or (C) commence, continue attempt by any Person to do or renew seek any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company Seller Parties shall, and shall direct its cause their Affiliates (including the Company Group) to, instruct the Seller Parties’ Representatives to, immediately promptly cease any existing activities, discussions and all existing discussions or negotiations with with, and the provision of confidential information to, any person conducted heretofore Persons (other than Purchaser and its Representatives) with respect to any Alternative Transaction. The Company also agrees that it will of the foregoing, to promptly request each person (other than the parties hereto terminate all physical and their respective Representatives) that has electronic data room access granted prior to the date hereof executed to any such Person or any of their respective representatives and, to the extent contemplated by or permissible under the terms of such confidentiality agreements, promptly issue instructions to any such Person who has entered into a confidentiality agreement or restrictions in connection with its, his a potential transaction involving any Group Company that has not expired or her consideration of acquiring been terminated in accordance with its terms to destroy any confidential information related to the Company to return or destroy all Confidential Information furnished to Group received thereunder in accordance with the terms of such person by or on behalf of it, him or her prior to the date hereofconfidentiality agreement. If the Company any Seller Party or any of its their respective Representatives receives any inquiry inquiry, proposal or proposal with respect offer relating to an Alternative Transaction at any time prior to transaction described in the Closingforegoing, then the Company Seller Parties shall promptly (and in no any event later than within one (1Business Day) Business Day after the Company become aware advise Purchaser of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposal. Without limiting proposal and the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05and conditions thereof.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement pursuant to Article IX, the Company shall Seller will not, and shall direct will cause its Subsidiaries and its and their respective controlled Affiliates and Representatives not to, directly or indirectly, (Aa) take any action to solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessconsider, or enter into any Contract withentertain, or in any manner knowingly encourage, knowingly facilitate or accept the submission of any proposal, offer or any discussions relating to or that might reasonably be expected to lead to or result in any proposal of, or offer from any person Person (other than BCAC the Buyer and its affiliatesAffiliates in connection with the transactions contemplated by this Agreement and the Ancillary Agreements) relating to a potential the acquisition of all the Business or substantially all any material portion of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Transferred Assets, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, assist or cooperate participate in or facilitate in any way other manner any effort or attempt by any third party to do or seek any of the foregoing, or (c) furnish any non-public information regarding the Business to any third party (except the furnishing of information to customers, suppliers, licensors, licensees, distributors and others that have a business relationship with the Business in the ordinary course of business consistent with past practice for purposes of facilitating the Business’s ordinary business activities). The Seller shall promptly, and in any event within one (1) Business Day of the date of this Agreement, (A) terminate access of any third party to any data room containing any confidential information regarding the Business; (B) cease and cause to be terminated, and cause its Subsidiaries and its and their respective controlled Affiliates and Representatives to cause to be terminated, all existing activities, discussions, negotiations and communications, if any, with any third party with respect to, or which would otherwise reasonably be expected to lead to, any Alternative Transaction acquisition of the Business or any material portion of the Transferred Assets; and (C) commencerequest the return or destruction of any confidential information provided to any third party in connection therewith subject to the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, continue or renew any due diligence investigation regarding any Alternative Transaction; providedand for the avoidance of doubt, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of nothing in this Section 7.05(a). The Company shall5.16 shall prohibit the Seller, and shall direct its Representatives to, immediately cease any and all existing discussions Subsidiaries or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto its and their respective Representatives) that has prior to controlled Affiliates and Representatives from taking any of the date hereof executed a confidentiality agreement foregoing actions in connection with its, his a sale or her consideration change of acquiring control of the Company to return Seller or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale portion of the Company that prohibits it from considering such inquiry or proposalExcluded Assets, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingcase, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, would not involve the termination or modification of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Asset Purchase and Service Area Transfer Agreement (Pacificorp /Or/)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Seller shall not, and shall direct its cause the Company Entities and their respective Representatives not to, solicit, initiate, encourage, discuss or negotiate with any other Person a possible sale (directly or indirectly) of the Seller Business, in the form of a sale of all or any material portion of the Seller’s assets related to the Seller Business, including any sale of the Company Entities (Aother than the sale of inventory in the ordinary course of business) solicit, negotiate with(an “Acquisition Proposal”), provide any nonpublic information regarding to any other Person concerning such business (other than information which the Company’s Company Entities provides to other Persons in the ordinary course of business, so long as the Seller has no reason to believe that the information may be utilized to evaluate an Acquisition Proposal) or enter into an agreement, arrangement or understanding, whether written or oral, with any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesthe Buyer) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement Acquisition Proposal. The Seller and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Entities shall, and shall direct its cause each of their Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will such Acquisition Proposal and promptly request each person (other than but in any event within five Business Days) after the parties hereto and their respective Representatives) that has date of this Agreement, if not already done so prior to the date hereof executed of this Agreement, instruct any Person who entered into a confidentiality agreement with the Seller that has not expired or been terminated in connection with its, his any actual or her consideration of acquiring the Company potential Acquisition Proposal to return or destroy all Confidential Information furnished to such person by information or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal documents in accordance with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) such confidentiality agreement. From and after the date hereof until the Effective Time or, if earlierhereof, the termination Seller shall promptly inform the Buyer of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, contact with any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, third party relating to or which is intended or is reasonably likely the foregoing, and promptly communicate to give rise to or result in, the Buyer the terms of any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(inquiry which a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to Company Entity may receive after the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination an Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (i) enter into, solicit, initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (A) solicit, negotiate with, provide any nonpublic information regarding sale of assets of the Company equal to 15% or more of the Company’s businessassets or to which 15% or more of the Company’s revenues or earnings are attributable, (B) the issuance or enter into acquisition of 15% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 15% or more of the combined voting power of the Company or (C) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 15% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with TortoiseCorp and its Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)7.05. The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it them from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.05 by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.05 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Tortoise Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) Prior to Completion or the termination of this Agreementagreement, the Company Sellers shall not, and shall direct cause their respective Affiliates and its and their respective Representatives not to, directly or indirectly:
(i) enter into, (A) solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries, indications of interest, offers or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or assets United States Securities Exchange Act of the Company1934, whether by mergeras amended, sale of stock, sale of assets, business combination or otherwise (concerning an “Alternative Transaction”), ;
(Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction; or
(Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement agreement and the Transaction Documents Business Combination Agreement and the consummation of the Transactions contemplated hereby and thereby shall not be deemed a violation of this Section 7.05(a). The Company clause 9.2.
(b) Each Seller shall, and shall direct cause its Affiliates and their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore prior to entering into this agreement with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person .
(other than the parties hereto and their respective Representativesc) that has prior to the date hereof executed If a confidentiality agreement in connection with its, his Seller or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives Representative receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the ClosingCompletion, then the Company such Seller shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Seller becomes aware of such inquiry or proposal) notify such person in writing that the Company such Seller is subject to an exclusivity agreement with respect to the sale of the Company Transactions contemplated under this agreement that prohibits it such Seller from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Sellers agree that any violation of the restrictions set forth in this Section 7.05(a) clause 9.2 by the Company a Seller or any of its Affiliates or their respective Representatives shall be deemed to be a breach of this Section 7.05(a) clause 9.2 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Seller.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC Seller shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiateencourage, continue initiate or engage in discussions or negotiations with, or provide any information to, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Buyer and/or its Affiliates and Representatives) concerning any direct or indirect acquisition of all or substantially all of the Capital Stock or assets of any Group Company, its stockholders and/or or any of their affiliates merger, consolidation or Representativesother business combination involving any Group Company (each, an “Acquisition Transaction”), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, and Seller and its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Affiliates and Representatives to, shall immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Person (other than with the Company, Buyer and its stockholders and their respective affiliates Affiliates and Representatives) conducted with respect to any such Acquisition Transaction; provided, however, that Buyer hereby acknowledges that prior to the date hereof with respect of this Agreement, Seller and its Affiliates and Representatives have provided information relating to the Group Companies and has afforded access to, and engaged in discussions with, other Persons in connection with a proposed Acquisition Transaction and that such information, access and discussions could reasonably enable another Person to form a basis for an Acquisition Transaction without any breach by Seller of this Section 7.6. During the period from the date of this Agreement through the earlier of the Closing or which is reasonably likely to give rise to the termination of this Agreement in accordance with its terms, Seller shall notify Buyer promptly upon the receipt of any proposal, offer, inquiry or result in, a Business Combination Proposalcontact from any Person (other than Buyer or its Affiliates and Representatives) in respect of any Acquisition Transaction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Acadia Healthcare Company, Inc.)
Exclusivity. (a) From DK and SBT. Until the date of Closing occurs or this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notis terminated in accordance with its terms, and except in connection with the Transactions, neither DK nor SBT will (and each shall direct cause its Subsidiaries and controlled Affiliates and their respective Representatives not to not), solicit, initiate, negotiate, agree to, directly engage in or indirectly, (A) solicit, negotiate with, provide renew any nonpublic information regarding the Company’s businesscontact concerning any proposal or offer, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way contact that would otherwise reasonably be expected to lead toresult in a proposal or offer, from any Alternative Transaction Person relating to any of the following involving such party and its Subsidiaries (but excluding any intra-group transaction): (a) a liquidation, dissolution or recapitalization, (b) a merger or consolidation, (c) a sale of any of the material assets (or any material portion of its assets) of, or any equity interest in, such party or any of its Subsidiaries, except for the sale of assets in the ordinary course of business consistent with past practice or as explicitly contemplated in this Agreement, (d) any transaction similar to any of the transactions described in sub-sections (a) through (c) or business combination outside the ordinary course of business, or (Ce) commenceany financing, continue investment, acquisition, purchase, merger, sale or renew any due diligence investigation regarding any Alternative Transaction; providedother similar transaction that would restrict, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of prohibit or inhibit such party’s ability to consummate the Transactions shall not be deemed a violation of this Section 7.05(a(each, an “Alternative Acquisition”). The Company shallEach of DK, SBT and their Affiliates and their respective directors, officers, managers, principals, partners, members, employees, agents, consultants, lenders, financing sources, advisors, accountants, or other representatives shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsAcquisition, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal that may reasonably be expected to result in an Alternative Acquisition, request the prompt return or destruction of all confidential information previously furnished with respect to an Alternative Transaction at any time prior Acquisition (except to the Closingextent required by Law or internal compliance policies or procedures) and immediately terminate all physical and virtual data room access previously granted to any Person with respect to an Alternative Acquisition. Each of DK and SBT shall notify DEAC promptly (and in any event within one (1) Business Day) orally and in writing after such Party (or any of its directors, then officers, managers, principals, partners, members, employees, agents, consultants, lenders, financing sources, advisors, accountants or other representatives) receives any proposal for an Alternative Acquisition or any request that is received after the Company date of this Agreement from any Person for non-public information relating to DK or SBT (as applicable) or for access to the business, properties, assets, books or records of DK or SBT (as applicable), in each case, related to an Alternative Acquisition, and such notice shall identify the third party making, and details of the material terms and conditions of, any such proposal for an Alternative Acquisition or request, and each of DK or SBT (as applicable) shall notify DEAC promptly (and in any event within one (1) Business Day) of any material amendments or proposed amendments as to price and other material terms thereof. Furthermore, each of DK and SBT shall promptly (and in no any event later than within one (1) Business Day Day) after the Company become aware receipt or delivery thereof, provide DEAC (or its outside counsel) with copies of all material transaction agreements accompanying such inquiry proposal for an Alternative Acquisition or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect request (including any written, or electronic material to the sale extent such material contains any financial terms, conditions or other material terms relating to any proposal for an Alternative Acquisition, including the financing thereof). Each of the Company DK and SBT acknowledges and agrees that prohibits it from considering such inquiry or proposalis aware, and will provide BCAC with a copy that such Party and each of its Affiliates and representatives is aware (or upon receipt of any such written inquiry or proposal or a detailed summary material nonpublic information of any such verbal inquiry or proposalDEAC, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingwill be advised), the parties agree that any violation of the restrictions set forth in this Section 7.05(a) imposed by the Company or United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each of DK and SBT hereby agree, for itself and on behalf of each of its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityAffiliates and representatives, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit that while any of its affiliates or Representatives to takethem are in possession of such material nonpublic information, whether none of such Persons shall, directly or indirectly, acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of DEAC, communicate such information to any other Person, take any other action with respect to solicit, initiate, continue or engage in discussions or negotiations withDEAC, or enter into cause or encourage any agreement with, or encourage, respond, provide information Person to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or do any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalforegoing.
Appears in 1 contract
Sources: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) Signing Date through the termination of this AgreementAgreement in accordance with Article XI, the Company Sellers shall not, and shall direct its Representatives not permit, the Company, or any of the officers, directors, managers, members, employees, advisors, representatives or agents of any of the Sellers or the Company, to, directly or indirectly:
(i) discuss, (A) solicitnegotiate, negotiate withundertake, provide authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired entity or otherwise, any nonpublic information regarding the Company’s businesstransaction involving a merger, consolidation, business combination, recapitalization, tender offer, purchase, or enter into disposition of any Contract with, amount of the equity securities or in any manner knowingly encourage, substantial or material amount of assets or business of the Sellers and/or the Company or any proposal of, any person other transaction having a similar or substantially similar effect (other than BCAC and its affiliatesthe sale of inventory in the Ordinary Course of Business) relating with any Person other than the Buyer (an “Acquisition Proposal”);
(ii) facilitate, encourage, solicit, or initiate discussions, negotiations, or submissions of proposals or offers in respect of an Acquisition Proposal;
(iii) furnish or cause to a potential acquisition of all or substantially all of be furnished, to any Person, any information concerning the equity interests Business, operations, properties, or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or Company in connection with an Acquisition Proposal; or
(iv) otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, facilitate or encourage, any Alternative Transaction effort or attempt by any other Person to do or seek any of the foregoing.
(Cb) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, The Sellers agree and acknowledge that the execution, delivery rights and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of remedies for noncompliance with this Section 7.05(a). 6.2 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Buyer and that money damages would not provide an adequate remedy to the Buyer.
(c) The Company Sellers shall, and shall direct its Representatives tocause the Company and their (and the Company’s) respective officers, directors, managers, members, employees, advisors, representatives, and agents to (i) immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Person (other than the Buyer) conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Acquisition Proposal, and (other than ii) immediately notify (which notice shall include the parties hereto material terms and their respective Representativesconditions of such Acquisition Proposal, and the identity of the Person making the same) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration Buyer of acquiring the Company to return or destroy all Confidential Information furnished to such person any contact by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal third party with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Acquisition Proposal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Patriot National, Inc.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement pursuant to Article IX, the Company shall Seller will not, and shall direct will cause its Subsidiaries and its and their respective controlled Affiliates and Representatives not to, directly or indirectly, (Aa) take any action to solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessconsider, or enter into any Contract withentertain, or in any manner knowingly encourage, knowingly facilitate or accept the submission of any proposal, offer or any discussions relating to or that might reasonably be expected to lead to or result in any proposal of, or offer from any person Person (other than BCAC the Buyer and its affiliatesAffiliates in connection with the transactions contemplated by this Agreement and the Ancillary Agreements) relating to a potential the acquisition of all the Business or substantially all any material portion of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Transferred Assets, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, assist or cooperate participate in or facilitate in any way other manner any effort or attempt by any third party to do or seek any of the foregoing, or (c) furnish any non-public information regarding the Business to any third party (except the furnishing of information to customers, suppliers, licensors, licensees, distributors and others that have a business relationship with the Business in the ordinary course of business consistent with past practice for purposes of facilitating the Business’s ordinary business activities). The Seller shall promptly, and in any event within one (1) Business Day of the date of this Agreement, (A) terminate access of any third party to any data room containing any confidential information regarding the Business; (B) cease and cause to be terminated, and cause its Subsidiaries and its and their respective controlled Affiliates and Representatives to cause to be terminated, all existing activities, discussions, negotiations and communications, if any, with any third party with respect to, or which would otherwise reasonably be expected to lead to, any Alternative Transaction acquisition of the Business or any material portion of the Transferred Assets; and (C) commencerequest the return or destruction of any confidential information provided to any third party in connection therewith subject to the terms of any applicable confidentiality agreement. Notwithstanding the foregoing, continue or renew any due diligence investigation regarding any Alternative Transaction; providedand for the avoidance of doubt, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of nothing in this Section 7.05(a). The Company shall5.16 shall prohibit the Seller, and shall direct its Representatives to, immediately cease any and all existing discussions Subsidiaries or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto its and their respective Representatives) that has prior to controlled Affiliates and Representatives from taking any of the date hereof executed a confidentiality agreement foregoing actions in connection with its, his a sale or her consideration change of acquiring control of the Company to return Seller or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale portion of the Company that prohibits it from considering such inquiry or proposalExcluded Assets, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoingcase, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, would not involve the termination or modification of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Asset Purchase and Service Area Transfer Agreement (Portland General Electric Co /Or/)
Exclusivity. Until consummation of the transactions contemplated hereby or termination of this Agreement pursuant to the provisions of Section Section 8.1, the Company will not (and the Company will not permit any of its Subsidiaries or any of its or their officers, directors, employees, agents, stockholders, partners, representatives or Affiliates to) directly or indirectly (except, and solely, to the extent as required by Delaware law; provided that prior to taking any actions restricted by this Section 4.8 in reliance on this exception, the Company shall deliver to the Majority Purchasers prior written notice of such action and the Board shall have first sought the advice of counsel as to whether Delaware law requires such action)
(a) From solicit, initiate, or encourage the date submission of this Agreement and ending on the earlier of any proposal or offer from any Person relating to, or enter into or consummate any transaction relating to, (i) the Closing and reorganization, merger, liquidation, dissolution or refinancing of any of the Company or any of its Subsidiaries, (ii) the termination purchase or sale of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person assets (other than BCAC and its affiliatesa purchase or sale of inventory in the Ordinary Course of Business) relating to a potential acquisition or equity interests of, or the making of all or substantially all any other investment in, any of the equity interests Company or any of its Subsidiaries, or (iii) any similar transaction or business combination involving any of the Company or any of its Subsidiaries or the assets of any of them (each of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise foregoing actions described in clauses (an “Alternative Transaction”i) through (iii), a "Company Transaction") or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, assist or cooperate participate in or facilitate in any way that would otherwise reasonably be expected to lead to, other manner any Alternative Transaction effort or (C) commence, continue or renew attempt by any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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, Person or enter into any agreement withto do or seek to do any of the foregoing; provided that the transactions contemplated hereby shall not constitute a Company Transaction for purposes hereof. The Company agrees to notify the Majority Purchasers immediately if any Person makes any oral or any written proposal, offer, inquiry or encourage, respond, provide information to or commence due diligence contact with respect to, any person (other than to a potential Company Transaction and provide the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than Majority Purchasers with the Company, its stockholders details thereof and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalresponse thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Swissray International Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company Seller shall not, shall cause its Affiliates (including the Company Group) not to, shall not authorize or permit any of Seller’s or its Affiliates’ their respective Representatives to and shall direct its Representatives the other Related Parties not to, directly or indirectly, (A) indirectly solicit, negotiate with, provide any nonpublic information regarding initiate or encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal of, or offer from any person Person (other than BCAC Purchaser and its affiliatesAffiliates) with respect to the Company Group, the University, any Service Provider or any assets or properties owned, used or held for use by the Company Group, relating to a potential acquisition any (a) merger or consolidation, (b) acquisition, purchase, sale, disposition or license of all or substantially all any material portion of the assets or equity interests in or assets of of, the CompanyCompany Group or (c) reorganization, whether by mergerrecapitalization, sale of stock, sale of assetsrestructuring, business combination or otherwise other similar transaction (an a “Alternative Competing Transaction”), (B) enter into nor agree to or consummate any agreement regardingCompeting Transaction, continue or otherwise participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any other person or entity (other than Purchaser and its Affiliates and Representatives) any information with respect to, or otherwise cooperate in any way with or facilitate any effort or attempt by any Person to effect a Competing Transaction; provided, however, that any Qualifying Transaction shall not be considered a “Competing Transaction.” Seller shall, and shall cause its Affiliates (including the Company Group) to, instruct Seller’s and its Affiliates’ respective Representatives and the Related Parties to, promptly cease any existing activities, discussions and negotiations with, and the provision of confidential information to, any Persons (other than Purchaser and its Affiliates and Representatives) with respect to any of the foregoing, promptly terminate all physical and electronic data room access granted prior to the date hereof to any such Person or any of their respective Representatives and promptly issue instructions to any such Person who has entered into a confidentiality agreement or restrictions in connection with a potential Competing Transaction that has not expired or been terminated in accordance with its terms to return or destroy any confidential information related to the Company Group, the University or the Business received thereunder in accordance with the terms of such confidentiality agreement. If any of Seller, any Related Party the Company Group or any of their respective Representatives receives any inquiry, proposal or offer from any Person relating to, or that would otherwise reasonably be expected to lead to, any Alternative a Competing Transaction or (C) commenceeach, continue or renew any due diligence investigation regarding any Alternative Transaction; provideda “Transaction Proposal”), that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company Seller shall promptly (and in no any event later than within one (1Business Day) Business Day after the Company become aware advise Purchaser of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalTransaction Proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person Person making such inquiry or proposalTransaction Proposal and the material terms and conditions of any such Transaction Proposal. Without limiting the foregoing, the parties agree that any Any violation of the restrictions set forth in this Section 7.05(a) 5.13 by any Affiliate or Representative of Seller (including the Company or its Representatives Group) shall be deemed to be a breach of this Section 7.05(a5.13 by Seller. A “Qualifying Transaction” means any inquiry, proposal or offer, or any expression of interest, by any Third Party relating to (A) a transfer or sale of Seller, or any merger, consolidation, recapitalization, tender or exchange offer, or other business combination transaction to acquire Seller, (B) direct or indirect acquisition or purchase by any Person of more than 50% of the Company. For clarityassets, equity or other property of Seller (determined without taking into account the equity or assets of the Company Group, it being understood that such transactions may inform include the equity and assets of the Company Group) or (C) any person making an unsolicited proposal regarding an Alternative Transaction merger, consolidation, recapitalization, liquidation, dissolution or similar transaction which would result, directly or indirectly, in the disposition of more than 50% of the assets, equity or other property of Seller, in each case whether in one transaction or a series of related transactions, in each case of clauses (A), (B) and (C), in which (1) each potential purchaser or other participant participating in any process in relation thereto is bound by a customary confidentiality and non-use agreement covering any information related to the Company Group or the Business and Seller shall use its reasonable best efforts to enforce such confidentiality agreements with respect to information related to the Company Group or the Business, including, following the Closing, at Purchaser’s request and (2) the purchaser or surviving party thereunder agrees to be, or by operation of Law will be, bound by the terms of this Section 7.05.
Agreement and the Ancillary Documents applicable to Seller and any remaining obligations of Seller under this Agreement and the Ancillary Documents (bincluding the obligation to consummate the Closing) From and after the date hereof until the Effective Time orwill be fully assumed by such Person (including by operation of Law, if earlierapplicable); provided that notwithstanding the occurrence of any Qualifying Transaction, the termination of Seller or its Affiliates, as applicable, shall remain responsible and liable for its obligations pursuant to this AgreementAgreement and any Ancillary Document to which Seller or its Affiliates, BCAC shall not takeas applicable, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(are a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalparty.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on the earlier of (i) through the Closing and (ii) the Date or earlier termination of this AgreementAgreement in accordance with Article 10, the Company Seller shall not, and shall direct its Representatives cause the Seller Affiliates and each of their respective directors, officers, employees, advisors and any other representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide engage in or knowingly encourage the initiation of any nonpublic information regarding the Company’s businessinquiry, proposal or enter into any Contract with, or in any manner knowingly encourage, any proposal of, offer from any person (other than BCAC Buyer and its affiliatesAffiliates) relating to a potential any direct or indirect acquisition (in one or more related transactions) of all any assets or substantially all properties of Seller or any Seller Affiliates relating to the equity interests or assets of the Company, Business (whether by merger, sale of stockconsolidation, sale of assetsassets or equity interests or otherwise) or (b) encourage, business combination initiate, engage in or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations with any Third Party regarding, or furnish to any person Third Party any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead toconnection with, any Alternative Transaction or such transaction described in the foregoing clause (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aa). The Company shallSeller also agrees that it, the Seller Affiliates and each of their respective directors, officers, employees, advisors and other representatives shall direct its Representatives to, immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore parties other than Buyer and its Affiliates with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalforegoing, and will provide BCAC with a copy of terminate access to the Virtual Data Room to any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalPerson other than Buyer, including its Affiliates and their authorized representatives. Notwithstanding anything in each case this Section 7.15 to the identity of the person making such inquiry or proposal. Without limiting the foregoingcontrary, (i) Seller, the parties agree that any violation Seller Affiliates and each of the restrictions their respective directors, officers, employees, advisors and other representatives shall be relieved of all of their respective obligations set forth in this Section 7.05(a7.15 if, but only for so long as, Target (as defined in the Arrangement Agreement) by is relieved of its obligations set forth in Section 7.1(a) and Section 7.1(b)(i)-(v) of the Company Arrangement Agreement (and then only to the extent that Target is so relieved of any such obligations), it being understood and agreed that if Target again becomes subject to any of its obligations set forth in Section 7.1(a) and Section 7.1(b)(i)-(v) of the Arrangement Agreement, Seller, the Seller Affiliates and each of their respective directors, officers, employees, advisors and other representatives shall once again be subject to all of their respective obligations set forth in this Section 7.15, and (ii) nothing herein shall prohibit Seller, the Seller Affiliates or its Representatives shall be deemed to be a breach any of their respective directors, officers, employees, advisors and other representatives from taking any actions taken in accordance with Section 7.1 of the Arrangement Agreement; provided, however, that notwithstanding the suspension of any obligations set forth in this Section 7.15, each other provision of this Section 7.05(a) by Agreement shall continue to remain in full force and effect until the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction earlier of the terms of this Section 7.05.
(b) From and after Closing or the date hereof until the Effective Time or, if earlier, the valid termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives Agreement pursuant to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalSection 10.1.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pembina Pipeline Corp)
Exclusivity. (a) From Other than in connection with the Transactions, the Company and the Contributors will not (and will not permit their respective directors, officers, employees, shareholders or other investors, affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to) directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the date of this Agreement and ending on or received after the earlier date of (i) the Closing and this Agreement from any other party to consummate a Competing Transaction or (ii) solicit, initiate, facilitate or encourage, engage in discussions or negotiations with, or furnish information to, any Person other than the termination of this Agreement, Acquiror with respect to a Competing Transaction.
(b) The Company and the Contributors will cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated and the Company shall and the Contributors will not, and shall direct its will cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations deal with any person conducted heretofore or entity other than the Acquiror with respect to discussing or negotiating any Alternative Competing Transaction. The Company also agrees that it and the Contributors will promptly request each person (other than the parties hereto and their respective Representatives) that has prior not release any third party from, or waive any provision of, any confidentiality, standstill, or similar agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If which the Company or any of its Representatives receives Contributor is a party or bound.
(c) The Company and the Contributors will notify in writing the Acquiror immediately if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at any time prior to is made, including in such notice the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering such Person making the inquiry or proposal, and will provide BCAC with a copy the terms of any such written inquiry or proposal or a detailed summary of any such verbal the inquiry or proposal, including and, if in written form, complete and accurate copies thereof, subject in each case to any confidentiality obligations currently outstanding; provided that in the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by event the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityContributors withhold information in reliance on such confidentiality obligations, such Party will inform the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquiror that information is being withheld.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Contribution Agreement (Cybin Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (other than BCAC and A) any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries or (B) with respect to Pace, any transaction or series of related transactions under which Pace or any of its affiliates, directly or indirectly, (1) relating to acquires or otherwise purchases any other person, (2) engages in a potential acquisition of business combination with any other person or (3) acquires or otherwise purchases all or substantially all a material portion of the equity interests assets or assets businesses of any other person (in the Companycase of each of (1), (2) and (3), whether by merger, sale consolidation, recapitalization, purchase or issuance of stockequity or debt securities, sale tender offer or otherwise) (each of assetsA and B, business combination or otherwise (an “Alternative Transaction”), other than with the other parties to this Agreement and their respective Representatives, (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)9.04. The Company Each party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each party also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 9.04 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 9.04 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (TPG Pace Tech Opportunities Corp.)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) the termination of such time as this AgreementAgreement is validly terminated in accordance with Article VI, the Company PKI and its Affiliates and their respective directors and officers shall not, and PKI shall direct not authorize, permit or cause its and its Affiliates’ other Representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessknowingly encourage, knowingly facilitate or enter into any Contract withnegotiation, discussion or in contract, with any manner knowingly encourage, any proposal of, any person other party (other than BCAC Buyer and its affiliatesAffiliates and its and their respective Representatives) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate furnish any confidential or non-public information relating to the Business, the Acquired Assets, the Assumed Liabilities or the Acquired Companies, or afford access to the business, properties, assets, liabilities, books or records of the Business or the Acquired Companies, to such other party, in each case in connection with the sale of all or more than 15% of the Acquired Assets (based on fair market value), or any way that would otherwise reasonably be expected merger, recapitalization or similar transaction with respect to lead toAcquired Companies representing more than 15% of the Acquired Companies (based on fair market value) (any of the foregoing, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that an “Acquisition”). Immediately following the execution, delivery and performance execution of this Agreement Agreement, PKI shall cease and the Transaction Documents and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or and negotiations with any person persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person an Acquisition, and within five (other than the parties hereto and their respective Representatives5) that has prior to Business Days after the date hereof executed hereof, instruct any Person who has entered into a confidentiality agreement in connection with its, his a potential Acquisition that has not expired or her consideration of acquiring the Company been terminated in accordance with its terms to return or destroy all Confidential Information furnished to information or documents received thereunder in accordance with the terms of such confidentiality agreement. Until the earlier of the Closing and such time as this Agreement is validly terminated in accordance with Article VI, PKI shall promptly notify Buyer in writing if any person by makes any written proposal or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal offer with respect to an Alternative Transaction at any time prior to the Closing, then the Company Acquisition and shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than Buyer with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalmaterial terms thereof.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, neither Carlyle nor the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its cause their respective Representatives not to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC 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 provide any information to or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Investor and/or its Affiliates, as permitted pursuant to clause (i)(A) of the last sentence of Section 5.3 or otherwise in connection with the transactions contemplated hereby, including the SPAC Transaction and the Alternative Transaction) concerning any sale of any of the Company’s Shares or, except as permitted by Section 5.1 (including Section 5.1 of the Company Disclosure Letter) other equity securities or any equity securities of any Subsidiary of the Company, its stockholders and/or any merger of their affiliates the Company or Representatives), concerning, relating to direct or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication indirect sale of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with majority of the consolidated assets of the Company, the Remaining Business or the Enterprise Business or similar transaction involving the Company or any of its stockholders Subsidiaries, other than assets sold in the [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and their respective affiliates (ii) is the type that the registrant treats as private or confidential. Ordinary Course of Business or to the extent permitted by Section 5.1 (including Section 5.1 of the Company Disclosure Letter) (each such acquisition transaction, an “Acquisition Transaction”). The Company and Representatives. BCAC Carlyle shall, and shall cause its affiliates and their respective Representatives to, (a) immediately cease and cause to be terminated any and all existing discussions or and negotiations with any person (such Person other than (i) Investor and its Representatives, (ii) as permitted pursuant to clause (i)(A) of the last sentence of Section 5.3 or (iii) otherwise in connection with the Companytransactions contemplated hereby (including the SPAC Transaction and the Alternative Transaction), regarding any Acquisition Transaction, (b) promptly request any such Person to promptly return or destroy all confidential information concerning the Company and its stockholders Subsidiaries, and their respective affiliates (c) promptly terminate all access previously granted to such Persons to any physical or electronic data room. Carlyle and Representatives) conducted prior the Company will promptly inform Investor of the details of any proposals or offer to engage in any negotiations or discussions, in each case, made after the date hereof with respect to, or which is reasonably likely to give rise to or result in, from a Business Combination Proposalthird party concerning an Acquisition Transaction.
Appears in 1 contract
Sources: Framework Agreement (Twilio Inc)
Exclusivity. (a) 7.4.1 From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Article 9, the Company Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries, indications of interest, offers or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any information to, or otherwise cooperate in any way with, any proposal of, any person (Person or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (Exchange Act concerning an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (iv) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that could reasonably be expected to result in an Alternative Transaction, (Cv) commence, continue or renew any due diligence investigation regarding any Alternative TransactionTransaction or (vi) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall7.4.
7.4.2 For purposes of this Agreement, and an “Alternative Transaction” shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore mean (i) with respect to Seller and the Company, (a) the issuance, sale or transfer to or investment by any Alternative Transaction. The Person in any newly issued or currently outstanding Equity Interest in the Company also agrees that it will promptly request each person (other than in the parties hereto and their respective RepresentativesOrdinary Course, (b) that has prior to the date hereof executed a confidentiality agreement in connection with its, his sale or her consideration transfer of acquiring the assets of the Company and the Company Subsidiaries to return any Person, or destroy all Confidential Information furnished to such person by (c) any merger or on behalf of it, him or her prior to the date hereof. If business combination between the Company or any of its Representatives receives the Company Subsidiaries, on the one hand, and any inquiry or proposal other Person, on the other hand and (ii) with respect to an Alternative Transaction at SPAC, New Holdco and New SPAC, any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry direct or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale indirect acquisition of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy business of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to takeperson, whether directly by way of a purchase of assets or indirectlysecurities or merger, any action to solicitconsolidation or otherwise, 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 such as the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any “initial business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations combination” under SPAC’s initial IPO prospectus with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalthird party.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement Each Key Stockholder, severally and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementnot jointly, the Company shall not, and shall direct its Representatives agrees not to, to directly or indirectly, through any officer, director, representative, agent or otherwise, (Aa) solicit, negotiate with, provide any nonpublic information regarding initiate or knowingly encourage (including by furnishing non-public information) the Company’s businesssubmission of, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, or (b) participate in any discussions or negotiations regarding, or furnish to any person Person any information with the intent to, or otherwise cooperate in any way with respect to, or cooperate in knowingly assist, participate in, facilitate or encourage, any way unsolicited proposal that constitutes, or would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance an Acquisition Proposal in violation of this Agreement and the Transaction Documents and the consummation Section 7.12 of the Transactions shall not be deemed a violation of this Section 7.05(a)Business Combination Agreement. The Company Each Key Stockholder shall, and shall direct its Representatives respective representatives and agents to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person conducted heretofore parties that may be ongoing with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Acquisition Proposal (other than the parties hereto and their respective Representativestransactions contemplated by the Business Combination Agreement) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration extent required by the applicable provisions of acquiring the Company Business Combination Agreement. Each Key Stockholder may respond to return or destroy all Confidential Information furnished to such person any unsolicited proposal regarding an Acquisition Proposal by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing indicating that the Company is subject to an exclusivity agreement and that such Key Stockholder is unable to provide any non-public information related to the Company or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Proposal for as long as the Business Combination Agreement remains in effect.
(b) Notwithstanding anything in this Agreement to the contrary, (i) no Key Stockholder shall be responsible, in its capacity as a stockholder of the Company, for the actions of the Company or the Company Board (or any committee thereof) or any officers, directors, employees and professional advisors (each in their capacity as such) of the Company, including any such persons that are also officers, directors, employees, representatives, or agents of such Key Stockholder (the “Company Related Parties”), with respect to any of the matters contemplated by this Section 9, (ii) no Key Stockholder makes any representations or warranties with respect to the sale actions of any of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Related Parties with a copy of respect to any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in matters contemplated by this Section 7.05(a9, (iii) any breach by the Company or of its Representatives obligations under Section 7.12 of the Business Combination Agreement shall not be deemed to be considered a breach of this Section 7.05(a9 (it being understood that each Key Stockholder shall remain responsible for any breach by it or its Representatives (other than any such Representative that is a Company Related Party) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
9) and (biv) From to the extent the Company complies with its obligations under Section 7.12 of the Business Combination Agreement and after the date hereof until the Effective Time orparticipates in discussions or negotiations with a Person regarding an Acquisition Proposal, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit each Key Stockholder and/or any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or may engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information with such Person to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any extent that the Company is permitted to do so under Section 7.12 of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “the Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalAgreement.
Appears in 1 contract
Sources: Business Combination Agreement (Sports Ventures Acquisition Corp.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct the Company permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and Acquiror or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger or similar business combination transaction or sale of all or substantially all of the equity interests assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the ordinary course of business) (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action 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, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Acquiror shall not take, nor shall it permit any of its affiliates 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 Person (other than the Company, its stockholders and/or or any of their affiliates 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 transaction
Business Combination involving Acquiror (a “Alternate Business Combination Proposal”) other than with the Company, its their stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a an Alternate Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct the Company permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and Acquiror or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger or similar business combination transaction or sale of all or substantially all of the equity interests assets involving a Company Party, taken as a whole (other than immaterial assets), or assets of any other transaction that would prohibit or materially delay the CompanyTransactions or would reasonably likely result in a prohibited delay (each such acquisition transaction, whether by mergerbut excluding the Transactions, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action in connection with a public offering of any Equity Securities of such Company Party or any of its Subsidiaries (or any Affiliate or successor of such Company Party or any of its Subsidiaries). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Acquiror shall not take, nor shall it permit any of its affiliates 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 Person (other than the CompanyCompany Parties, its their respective stockholders and/or or any of their affiliates 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 transaction
Business Combination involving Acquiror (a “Alternate Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates its Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a an Alternate Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Forest Road Acquisition Corp. II)