Common use of Alternative Transaction Clause in Contracts

Alternative Transaction. The Company and its directors and executive officers shall not, and the Company will cause its Subsidiaries not to, and the Company shall not authorize or knowingly permit any of its or its Subsidiaries officers, directors, employees, affiliates, attorneys, financial advisors or other agents or representatives (collectively, “Representatives”) to (i) directly or indirectly, solicit, initiate, encourage, knowingly induce, facilitate or support any inquiry, proposal or offer from, furnish any non-public information to, or participate in any discussions or negotiations, or enter into any agreement with, any party or group regarding any Alternative Transaction (except to disclose the existence of the provisions of this Section 5.2), (ii) approve, endorse or recommend any Alternative Transaction (except to the extent specifically permitted by Section 5.2(d)), or (iii) enter into any letter of intent or similar document or any contract, agreement or commitment (whether binding or not) contemplating or otherwise relating to any Alternative Transaction Proposal. The Company and its directors and executive officers will, the Company shall cause its Subsidiaries to, and the Company shall use reasonable efforts to cause its Representatives to, immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Alternative Transaction Proposal, and, upon Acquiror’s request, shall request the prompt return or destruction of all confidential information previously furnished to any Person with which the Company, its Subsidiaries or Representatives have engaged in any such activities within the 12-month period preceding the Agreement Date. The Company and its directors and executive officers will, the Company shall cause its Subsidiaries to, and the Company shall use reasonable efforts to cause its Representatives to, use commercially reasonable efforts to enforce (and will not waive any provisions of) any confidentiality or standstill agreement (or any similar agreement) which the Company of any of its Subsidiaries is a party relating to any such Alternative Transaction Proposal. Any breach of the foregoing provisions of this subsection by any of the Company’s Subsidiaries, directors or executive officers, or other Representatives that were authorized or knowingly permitted to take such actions in breach of the foregoing, shall be deemed to be a breach by the Company. The Company shall use its commercially reasonable efforts to inform its Representatives of the restrictions contained in this Section 5.2.

Alternative Transaction. The Except to the extent expressly permitted by Section 5.2(c) and Section 5.2(d), the Company and its directors and executive officers shall not, and the Company will shall cause its officers, directors, Company Subsidiaries and Affiliates not to, and shall cause the officers, directors and Affiliates of Company Subsidiaries not to, and the Company shall not authorize or knowingly permit (and shall cause the Company Subsidiaries, and the Company’s and the Company’s Subsidiaries’ respective officers, directors and Affiliates, not to authorize or knowingly permit) any of its the Company’s or its Subsidiaries the Company Subsidiaries’ respective employees or any investment banker, attorney or other advisor or representative retained by the Company or any Company Subsidiary or retained by any of the Company’s and the Company’s Subsidiaries’ respective officers, directors and Affiliates (such officers, directors, Affiliates, employees, affiliatesinvestment bankers, attorneys, financial advisors or other agents or representatives (collectively, collectively being the “Representatives”) to to, directly or indirectly (i) directly or indirectly, solicit, initiate, encourageseek, or knowingly induceencourage or facilitate, facilitate or support any inquiry, proposal or offer from, furnish any non-public information to, or participate in any discussions or negotiationsnegotiations with, or enter into any agreement with, any party or group regarding any Alternative Transaction (except to disclose the existence of the provisions of this Section 5.2), (ii) approve, endorse or recommend any Alternative Transaction (except to the extent specifically permitted by Section 5.2(d))Transaction, or (iii) enter into any agreement in principle, letter of intent or similar document or any contractintent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or commitment other Contract (whether binding or not) contemplating or otherwise relating to any Alternative Transaction Proposal, or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iv) submit any Alternative Transaction Proposal to the vote of any stockholders of the Company or any Company Subsidiary, (v) withhold, withdraw, amend or modify (or publicly propose or announce any intention to withhold, withdraw, amend or modify), in a manner adverse to Acquiror, the approval of the Company Board of this Agreement and/or any of the transactions contemplated hereby, (vi) grant any waiver or release under any standstill or similar agreement with respect to the Company or any of the Company Subsidiaries, or any class of equity securities of the Company or any of the Company Subsidiaries, or (vii) withdraw or modify (or publicly propose or announce any intention to withdraw or modify), in a manner adverse to Acquiror, the recommendation of the Company Board that the Company Stockholders vote in favor of the adoption of this Agreement. The Company and its directors and executive officers will, and will cause the Company shall cause its Subsidiaries to, and the Company shall use reasonable efforts to cause its their respective Representatives to, immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Alternative Transaction Proposal, and, upon Acquiror’s request, shall request the prompt return or destruction of all confidential information previously furnished to any Person with which the Company, its the Company Subsidiaries or Representatives have engaged in any such activities within the 12-12 month period preceding the Agreement Date. The Company and its directors and executive officers will, the Company shall cause its Subsidiaries to, and the Company shall use reasonable efforts to cause its Representatives to, use commercially reasonable efforts to enforce (and will not waive any provisions of) any confidentiality or standstill agreement (or any similar agreement) which the Company of any of its Subsidiaries is a party relating to any such Alternative Transaction Proposal. Any breach of the foregoing provisions of this subsection by any of the Company’s Subsidiaries, directors or executive officers, or other Representatives that were authorized or knowingly permitted to take such actions in breach of the foregoing, shall be deemed to be a breach by the Company. The Company shall use its commercially reasonable efforts to inform its Representatives of the restrictions contained in this Section 5.2.

Alternative Transaction. The Company agrees that, prior to the Closing, it and its directors subsidiaries will not and executive officers shall not, and the Company will cause its Subsidiaries not to, and the Company shall not authorize or knowingly permit any direct each of its or and its Subsidiaries officerssubsidiaries’ agents, directorsadvisors, employees, affiliatesinvestment bankers, attorneys, financial advisors or accountants and other agents or representatives acting in such capacity (collectively, “Representatives”) to (i) not to, directly or indirectly, (i) solicit, initiate, or knowingly encourage, knowingly induce, facilitate or support any inquiryknowingly induce the making, proposal submission or offer fromannouncement of, furnish any non-public information to, or participate in any discussions or negotiations, or enter into any agreement with, any party or group regarding any Alternative Transaction (except to disclose the existence of the provisions of this Section 5.2as defined below), (ii) approvedisclose to any person or entity, endorse or recommend discuss with any person or entity, any information relating to the Company and/or any of its subsidiaries that would reasonably be expected to encourage or result in the making of any Alternative Transaction or in connection with any Alternative Transaction, (except iii) enter into, participate in, maintain or continue any communications or negotiations regarding any Alternative Transaction, (iv) agree to, accept, recommend or endorse (or publicly propose or announce any intention or desire to agree to, accept, recommend or endorse), including any change of recommendation by the extent specifically permitted by Section 5.2(d))Board, any Alternative Transactions, or (iiiiv) enter into any letter of intent intent, contract or similar document or any contractother agreement relating to, agreement or commitment (whether binding or not) contemplating or otherwise relating agree to or consummate or effect, any Alternative Transaction ProposalTransaction. The For purposes of this Agreement, the term “Alternative Transaction” means any agreement, offer or proposal for, any acquisition (including beneficial ownership) of (i) more than 5% of the outstanding voting securities of the Company and or (ii) a substantial portion of the consolidated assets of the Company (other than in the ordinary course of business), whether by way of merger, consolidation, reorganization, liquidation, asset sale, stock purchase, joint venture, exclusive license, tender offer or other business combination, other than any offer, proposal or indication of interest made by or on behalf of Investor or its directors and executive officers willaffiliates; provided, however, that notwithstanding anything herein to the contrary, the Company shall cause its Subsidiaries be permitted to enter into any agreement, discussion or negotiation with, or provide information to, and the Company shall use reasonable efforts to cause its Representatives toor solicit, immediately cease encourage, facilitate or induce any and all existing activitiesinquires or proposals from, discussions or negotiations with any third parties conducted heretofore other person with respect to any an Alternative Transaction Proposalin response to an unsolicited proposal that the Alternative Transaction Committee or the Board determines in good faith could reasonably be expected to lead to a Superior Transaction (such determination, anda “Board Determination”). For purposes of this Agreement, upon Acquiror’s requesta “Superior Transaction” means a bona fide written Alternative Transaction that the Alternative Transaction Committee and the Board determine in good faith, shall request after receiving the prompt return or destruction advice of all confidential information previously furnished their financial advisors and outside legal counsel, and in the exercise of their fiduciary duties, to any Person with which be more favorable to the Company, its Subsidiaries ’s stockholders from a financial point of view than the transactions contemplated by this Agreement or Representatives have engaged otherwise in any such activities within the 12-month period preceding best interests of the Agreement Date. The Company and its directors and executive officers willstockholders. For the avoidance of doubt, the Company shall cause not be deemed in breach of its Subsidiaries toobligations under this paragraph (e) as a result of any action taken directly or indirectly by individual members of the Board when acting in their capacity as a shareholder of the Company (and not at the direction of a majority of the Board). Notwithstanding anything to the contrary herein, and the Company shall use reasonable efforts not be deemed to cause its Representatives to, use commercially reasonable efforts to enforce violate any provision of this Agreement solely by virtue of any of the following acts or any combination thereof: any communication by and between the Company and a third party (and will their respective Representatives) to the extent that such third party makes an unsolicited proposal with respect to an Alternative Transaction following the date hereof that does not waive any provisions of) any confidentiality or standstill agreement (or any similar agreement) which result from a breach by the Company of any of its Subsidiaries obligations hereunder and such communication is a party relating limited to any such Alternative Transaction Proposal. Any breach of (A) indicating that the foregoing Company is subject to the provisions of this subsection by any Agreement, (B) clarifying the terms and conditions of such proposal or (C) the Company’s Subsidiariesthird party addressing the questions that are permitted under (B) relating to such proposal. Prior to a Board Determination, directors in no event shall the Company or executive officers, or other Representatives that were authorized or knowingly permitted to take such actions in breach of the foregoing, shall be deemed to be a breach by the Company. The Company shall use its commercially reasonable efforts to inform its Representatives of the restrictions contained engage in this Section 5.2a discussion with a third party to negotiate or improve upon such Alternative Transaction.

Alternative Transaction. The Company From the date hereof until the Closing or the earlier termination of this Agreement pursuant to ‎Section 10.1, except as otherwise permitted by Section 6.1 (including the Internal Reorganization), Clearway and its directors and executive officers the Seller shall not, and beginning after the closing of the Internal Reorganization the Seller shall cause the Company will cause its Subsidiaries not toto (and Clearway, the Seller and the Company shall not authorize or knowingly permit any of its or its Subsidiaries officerstheir respective Representatives to), directorsand Clearway and the Seller shall cause their respective Affiliates (including the Company Entities) (and shall cause the Company Entities to not authorize their respective Representatives to) and equityholders not to, employees, affiliates, attorneys, financial advisors or other agents or representatives (collectively, “Representatives”) to (i) directly or indirectly, take any action to: (a) encourage, solicit, initiateinitiate or facilitate any offer or proposal concerning the sale, encouragemerger, knowingly inducecombination, facilitate joint venture or support other transaction involving all or any inquirypart of the Equity Interests, proposal business or offer from, furnish any non-public information toproperties of the Company Entities, or participate in similar transactions involving any discussions of the Company Entities with any Person or negotiationsgroup (other than the Buyer or any Affiliate, Representative or designee of Buyer) (an “Acquisition Proposal”); (b) recommend for approval or authorize the entry of, or enter into or propose to enter into, any agreement with respect to any Acquisition Proposal or enter into any agreement requiring them to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; or (c) engage, initiate or participate in any way in negotiations or discussion with, or furnish any party or group regarding information to, any Alternative Transaction (except to disclose the existence of the provisions of this Section 5.2), (ii) approve, endorse or recommend any Alternative Transaction (except to the extent specifically permitted by Section 5.2(d))Person in connection with, or (iii) enter into the making of any letter of intent or similar document or any contract, agreement or commitment (whether binding or not) contemplating or otherwise relating to any Alternative Transaction proposal that constitute an Acquisition Proposal. The Company Clearway and its directors the Seller shall (and executive officers willshall cause their respective Affiliates, including the Company shall cause its Subsidiaries toEntities, and the Company shall use reasonable efforts to cause its Representatives to, ) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any third parties Persons (other than the Buyer or an Affiliate, Representative or designee of the Buyer) conducted heretofore on or prior to the date hereof with respect to any Alternative Transaction Acquisition Proposal. Without limitation of the foregoing, andprior to the Closing, upon Acquiror’s requestClearway, the Seller and the Company Entities shall request the prompt return or destruction of all any confidential information previously furnished shared in connection with such discussions or negotiations and terminate access to any Person with which data rooms by such Persons and their representatives (other than the CompanyBuyer or an Affiliate, its Subsidiaries Representative or Representatives have engaged in any such activities within the 12-month period preceding the Agreement Date. The Company and its directors and executive officers will, the Company shall cause its Subsidiaries to, and the Company shall use reasonable efforts to cause its Representatives to, use commercially reasonable efforts to enforce (and will not waive any provisions of) any confidentiality or standstill agreement (or any similar agreement) which the Company of any of its Subsidiaries is a party relating to any such Alternative Transaction Proposal. Any breach designee of the foregoing provisions of this subsection by any of the Company’s Subsidiaries, directors or executive officers, or other Representatives that were authorized or knowingly permitted to take such actions in breach of the foregoing, shall be deemed to be a breach by the Company. The Company shall use its commercially reasonable efforts to inform its Representatives of the restrictions contained in this Section 5.2Buyer).