Common use of No Solicitation of Competing Transaction Clause in Contracts

No Solicitation of Competing Transaction. (a) From the date of this Agreement until the Closing or, if earlier, the termination of this Agreement in accordance with its terms, Seller shall not (whether directly or indirectly through advisors, agents or other intermediaries), and Seller shall cause its and its Subsidiaries' respective officers, directors, advisors, representatives and other agents not to, directly or indirectly, (i) solicit, initiate or knowingly encourage, or take any other action to facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal or (ii) participate or engage in substantive discussions or negotiations with, or disclose or provide any non-public information relating to Seller or its subsidiaries or afford access to the properties, books or records of Seller or its Subsidiaries to, any person (including any "person" as defined in Section 13(d)(3) of the Exchange Act) that has made an Acquisition Proposal or with or to any Person in contemplation of an Acquisition Proposal or (iii) enter into any agreement or agreement in principle providing for or relating to an Acquisition Proposal; provided, however, that if and only if (A) a person has submitted an unsolicited written Acquisition Proposal (under circumstances in which Seller has complied with its obligations under this Section 6.5(a)) to Seller's Board of Directors, (B) Seller's Board of Directors believes in good faith, based on such matters as it deems relevant, including the advice of Seller's financial advisor, that such Acquisition Proposal is a Superior Proposal and (C) Seller's Board of Directors determines in good faith, based on such matters as it deems relevant, including consultation with Seller's outside legal counsel, that engaging in such negotiations or discussions or providing such information is required to satisfy the fiduciary duties of the Board of Directors of Seller under Utah law, then Seller may furnish information to such person with respect to Seller and the Business Subsidiaries (so long as Seller has entered into a customary confidentiality agreement with such party) and participate in negotiations and discussions with such person regarding such Acquisition Proposal; provided further that, after the fifth business day following Parent's receipt of written notice advising Parent that Seller's Board of Directors is prepared to accept such Superior Proposal, which notice specifies the material terms and conditions of such Superior Proposal and identifies the person making such Superior Proposal, the Board of Directors of Seller may, in response to a Superior Proposal which was not solicited by Seller and which did not otherwise result from a breach of this Section 6.5(a), terminate this Agreement, if the Board of Directors of Seller determines in good faith, based on such matters as it deems relevant, including consultation with the Seller's outside legal counsel, that it is a Superior Proposal under Applicable Law, and, concurrently with such termination, causes Seller to pay the fee payable pursuant to Section 8.2(b) hereof by reason thereof. Nothing contained in this Agreement shall prohibit Seller or Seller's Board of Directors from taking and disclosing to Seller's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e- 2(a) promulgated under the Exchange Act or from making any disclosure required by applicable law or, in the case of Seller's Board of Directors, making any other disclosure to Seller's stockholders that Seller's Board of Directors determines in good faith is required to be made to satisfy the fiduciary duties of Seller's Board of Directors under Applicable Law. Seller shall immediately cease and cause to be terminated and shall cause its Affiliates and Subsidiaries and its or their respective officers, directors, employees, representatives or agents, to terminate all existing discussions or negotiations, if any, with any persons conducted heretofore with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal.