Exclusive Dealing. (a) From and after the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1. (b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 4 contracts
Samples: Stock Purchase Agreement (Revelyst, Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.), Stock Purchase Agreement (Outdoor Products Spinco Inc.)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until to the earlier of the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Agreement, the Seller Guarantors, the Sellers, NewCo and the Company neither JPM nor any of its Affiliates shall not, and shall cause their respective Affiliates and Representatives not take any action to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, engage in discussions or negotiations with with, or provide any Persons conducted prior information to, any Person other than BNY or any of its Affiliates and their representatives concerning any sale of the Corporate Trust Business, except to or on the date of extent expressly required by this Agreement with respect or any of the Related Agreements or necessary to any Acquisition Proposalconsummate the transactions contemplated hereby or thereby. If any Representative or Affiliate JPM will promptly communicate to BNY the terms of any Seller Guarantorproposal of inquiry that it or any of its Affiliates may receive in respect of any such transaction other than the transactions contemplated hereby, or of any Seller such negotiations or discussions being sought to be initiated with JPM or any of its Affiliates, and, if known, the Companyidentity of the third party initiating any such proposal, whether in his inquiry, discussion or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1negotiation.
(b) During the Pre-Closing Period, each period from the date of this Agreement to the earlier of the Seller GuarantorsClosing Date or the termination of this Agreement, neither BNY nor any of its Affiliates shall take any action to, directly or indirectly, encourage, initiate or engage in discussions or negotiations with, or provide any information to, any Person other than the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, JPM or any of its Affiliates and their Affiliates or Representatives receipt ofrepresentatives concerning any sale of the Banking Business, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 except to the Company extent expressly required by this Agreement or for access to any of the properties, books Related Agreements or records necessary to consummate the transactions contemplated hereby or thereby. BNY will promptly communicate to JPM the terms of the Company by any Person proposal of inquiry that it or Persons any of its Affiliates may receive in respect of any such transaction other than Acquiror that would reasonably the transactions contemplated hereby, or of any such negotiations or discussions being sought to be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions initiated with BNY or any of such Acquisition Proposalits Affiliates, inquiryand, expression of interestif known, proposal, offer, notice or request and (2) the identity of the Person or Group making third party initiating any such Acquisition Proposalproposal, inquiry, expression of interest, proposal, offer, notice discussion or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)negotiation.
Appears in 3 contracts
Samples: Purchase and Assumption Agreement (Bank of New York Co Inc), Purchase and Assumption Agreement (Bank of New York Co Inc), Purchase and Assumption Agreement (J P Morgan Chase & Co)
Exclusive Dealing. (a) The Company shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Acquisition Proposal. From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company Parties shall not, and shall cause the other Group Companies not to, and shall not authorize or permit their respective Affiliates Representatives to, and shall use their reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company or Merger Sub (or any Affiliate or successor of any Group Company or Merger Sub); (v) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal, including without limitation any “standstill” or similar provisions thereunder, or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SPAC Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, 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 a SPAC Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a SPAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of SPAC (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of SPAC); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)foregoing.
Appears in 3 contracts
Samples: Business Combination Agreement (Valens Semiconductor Ltd.), Business Combination Agreement (PTK Acquisition Corp.), Business Combination Agreement (Endurance Acquisition Corp.)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on period from the date of this Agreement through (i) the Closing Date, or (ii) the date that is six (6) months after the termination of this Agreement by Purchaser in accordance with respect Section 8.1(d), the Company and Sellers shall not take, nor will the Company or Sellers permit any of their respective Affiliates, representatives, consultants, financial advisors, attorneys, accountants or other agents to take, any action to solicit, encourage, initiate or engage in discussions or negotiations with, or provide any information to or enter into any agreement with or cooperate in any other way with any Person (other than Purchaser, its Affiliates and their respective representatives) concerning any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor; provided, any Seller or however, that Purchaser hereby acknowledges that prior to the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes date of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller GuarantorsAgreement, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 has provided information relating to the Company and the Subsidiaries and has afforded access to, and engaged in discussions with, other Persons in connection with Acquisition Proposals. The Company shall notify Purchaser promptly (but in no event later than forty eight (48) hours) after receipt by any of the Company, the Company Subsidiaries or any of their representatives of any Acquisition Proposal from any Person other than Purchaser or any request for non-public information relating to an Acquisition Proposal or for access to any of the properties, books or records of the Company or any Company Subsidiary by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition ProposalPurchaser. Such notice shall describe (1) the material terms Sellers with Knowledge thereof and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed Purchaser informed, on a current basis, of any material changes in the status of any such Acquisition Proposal or request. Sellers and details the Company shall (and Sellers and the Company shall cause their representatives to) immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than Purchaser) conducted heretofore with respect to any Acquisition Proposals. To the extent it has not already done so, the Company shall, or shall cause its representatives to, promptly request that all confidential information previously furnished to any Person be promptly returned or destroyed. The Company agrees not to, without the prior written consent of Purchaser, release any Person from, or waive any provision of, and any modification to, confidentiality agreement entered into in connection with any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide potential Acquisition Proposal to Acquiror which the Company is a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)party.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Home Inns & Hotels Management Inc.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and, with respect to clauses (iii) and (iv), the Company’s current or future parent entity, Affiliate, or Subsidiary, and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support endorse, recommend, accept, discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related thereto; (v) consummate any Company Acquisition Proposal or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons other than TortoiseCorp III and its Affiliates regarding a Company Acquisition Proposal, (B) notify TortoiseCorp III promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep TortoiseCorp III reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the TortoiseCorp III Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written notice as or oral) with respect to the existence of these provisionsa TortoiseCorp III Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a TortoiseCorp III Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding an TortoiseCorp III Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any TortoiseCorp III Party (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of TortoiseCorp III); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. TortoiseCorp III agrees to (A) notify the Company promptly upon receipt of any TortoiseCorp III Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected TortoiseCorp III Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such TortoiseCorp III Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such TortoiseCorp III Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Business Combination Agreement (TortoiseEcofin Acquisition Corp. III), Business Combination Agreement (TortoiseEcofin Acquisition Corp. III)
Exclusive Dealing. (a) From and after During the Agreement Date until period from the date hereof through the Closing or the earlier termination of this Agreement, none of Parent or Merger Sub will take any action to knowingly initiate, solicit or engage in discussions or negotiations with, or knowingly provide any information to, any Person (other than the Company and the Company’s Representatives) concerning an initial public offering, recapitalization or refinancing of any member of the Group Companies (other than as contemplated by this Agreement and the other Transaction Documents, including the Backstop Agreements and the Subscription Agreements), any purchase of a majority of the outstanding Parent Ordinary Shares or any merger, sale of a majority of the assets of the Group Companies or similar transactions involving the Group Companies or their respective securities (other than assets sold in accordance with Article 11 the Ordinary Course of Business and licenses (whether exclusive or non-exclusive) of the intellectual property rights of a third Person) (each such transaction, an “Pre-Closing PeriodAlternative Transaction”), ; provided that this Section 5.05 will not apply to Parent or Parent’s Representatives in connection with shareholder communications related to the Seller Guarantors, the Sellers, NewCo transactions contemplated by this Agreement and the Company shall notother Transaction Documents or the execution, delivery and performance thereof. Parent will, and shall will cause their respective Affiliates and Representatives not its Subsidiaries to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated (a) any and all existing activitiesdiscussions, discussions communications or negotiations with any Persons Person (other than the Company and the Company’s Representatives, the PIPE Investors with respect to the PIPE Investment and the Backstop Shareholders with respect to the Backstop Arrangements) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalAlternative Transaction and (b) any such Person’s and its authorized Representatives’ access to any electronic data room granted in connection with any acquisition transaction. If The Parties agree that, if the Takeover Panel determines that any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes provision of this Agreement that requires Parent to have breached this Section 6.1.
take or not to take action, whether as a direct obligation or as a condition to the Company’s obligations (b) During the Pre-Closing Periodhowever expressed), each is not permitted by Rule 21.2 of the Seller GuarantorsCity Code on Takeovers and Mergers (the “Takeover Code”), that such provision shall have no effect and shall be disregarded. In the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or event that any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead unsolicited inquiry is made by a potential party to an Acquisition ProposalAlternative Transaction, whether formal or informal, Parent will (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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential permissible under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, Takeover Code) notify the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any that such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)contact has occurred.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (4D Pharma PLC), Merger Agreement (Longevity Acquisition Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Company and each Seller Guarantorsshall, the Sellersdirect its respective Affiliates, NewCo officers, managers, directors, employees, investment bankers, consultants, representatives and the Company shall not, and shall cause their respective Affiliates and Representatives other agents not to, directly or indirectly, (i) sell or otherwise transfer the Shares or any other capital stock of the Company, or enter into any agreement to sell or otherwise transfer the Shares or any other capital stock of the Company; (ii) take any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support negotiate, accept or induce the makingdiscuss, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesto acquire all or any portion of the Company or its assets (excluding any sale of assets in the Ordinary Course of Business), whether by merger, consolidation, sale of stock or would reasonably be expected assets, recapitalization or otherwise (each, an “Acquisition Proposal”); (iii) engage in discussions or negotiations with any third Person with respect to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, ; (iv) enter into any letter of intent agreement or any other Contract contemplating commitment or otherwise relating consummate or agree to any consummate an Acquisition Proposal Proposal; or (v) submit disclose or provide any Acquisition Proposal nonpublic information relating to the vote of any Company Shareholder(including this Agreement) in connection with an Acquisition Proposal. The Each Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates Company and each of their respective Representatives its agents to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any all discussions and all existing activitiesnegotiations, discussions or negotiations with any Persons conducted if any, that have taken place prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal. If any Representative or Affiliate The Company and each Seller shall as promptly as practicable (and in no event later than two Business Days after receipt thereof), advise Buyer of any Seller Guarantor, inquiry received by it after the date hereof relating to any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that any Person is considering making an potential Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any and of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, proposal or inquiry, expression of interest, proposal, offer, notice or request and (2) including the identity of the Person or Group and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal, inquiry, expression or of interest, any information requested from such Party or of any negotiations or discussions being sought to be initiated with it in connection with any such proposal, offer, notice and such Party shall furnish to Buyer a copy of any such proposal or request (except inquiry and shall keep Buyer fully informed on a prompt basis with respect to any developments with respect to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)foregoing.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Sra International Inc)
Exclusive Dealing. (a) From and after the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the The Company shall not, and shall cause their respective Affiliates and Representatives not permit any of its Subsidiaries to, directly and the Company and its Subsidiaries shall not authorize or indirectlypermit any officer, (i) director or employee of, or any financial advisor, attorney, accountant or other advisor or representative retained by, the Company or any of its Subsidiaries to, solicit, initiate, seekencourage (including by way of furnishing information), entertain, knowingly encourage, knowingly facilitate, support endorse or induce the making, submission or announcement of enter into any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 agreement with respect to, or take any other action regardingto facilitate, any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition any Takeover Proposal. The Company shall immediately advise FAFCO orally and in writing of any Takeover Proposal or any inquiries or discussions with respect thereto and shall promptly, but in any event within two (iii2) agree toBusiness Days of receipt, acceptfurnish to FAFCO a copy of any such written proposal or a written summary of any such oral proposal. Neither the Board of Directors of the Company nor any committee thereof shall (a) withdraw or modify, approveor propose to withdraw or modify, endorse in a manner adverse to FAFCO the approval or recommend recommendation by the Board of Directors of the Company of the Merger or this Agreement or (b) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, (iv) enter into any letter of intent Takeover Proposal or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal acquisition of outstanding Company Common Shares other than pursuant to the vote Merger or this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Board of any Directors of the Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause from (i) furnishing information to be terminated any and all existing activities, or entering into discussions or negotiations with any Persons conducted prior to unsolicited Person or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes taking any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors described in clauses (a) and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, preceding sentence if and only to the Sellers, NewCo and extent that the Board of Directors of the Company shall promptly notify Acquiror have determined in writing after their receipt ofgood faith, that such action is required in the exercise of its fiduciary duties, based upon the written advice of its outside counsel or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 complying with Rule 14d-9 and Rule 14e-2 promulgated under the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Speizer Mark), Merger Agreement (National Information Group)
Exclusive Dealing. (a) From and after the Agreement Date until Until the Closing Date, the Company or ICG Group shall not take, nor shall it permit any of its Subsidiaries and any of its respective officers, directors, employees, representatives, consultants, financial advisors, attorneys, accountants, subsidiaries or other agents to take, any action to solicit, encourage, initiate or engage in discussions or negotiations with, or provide any information to or enter into any agreement with any Person (other than Parent, Merger Subsidiary and/or their respective Affiliates) concerning any direct or indirect purchase of any of the earlier termination Company’s equity securities or any merger, sale of this Agreement substantial assets or similar transaction involving any Acquired Company or ICG Group (for the avoidance of doubt other than the sale by any Acquired Company of immaterial assets in accordance with Article 11 the ordinary course of business) (the each such acquisition transaction, an “Pre-Closing PeriodAcquisition Transaction”), . The Company shall promptly advise Parent of any proposal regarding an Acquisition Transaction and the Seller Guarantors, terms and conditions of any such proposal and the Sellers, NewCo identity of the Person making any such proposal and shall keep Parent informed on a current basis in all material respects of the status and details of any such proposal.
(b) Each of ICG Group and the Company shall notagrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which any such party or any of its Subsidiaries is a party or under which any such party or any of its Subsidiaries has any rights, and shall will use its commercially reasonable efforts to cause their respective Affiliates and Representatives not toeach such agreement to be enforced at the request of the other party to this Agreement.
(c) Immediately following the execution of this Agreement, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement each of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors ICG Group and the Sellers Company and their Subsidiaries shall, and they shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Person (other than Parent and Merger Subsidiary and their respective Representatives) with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or As soon as reasonably practicable following the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes date of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodAgreement, the Company shall keep Acquiror fully informed (i) promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of an Acquisition Transaction to return or destroy, in each case pursuant to the terms of such confidentiality agreement, all confidential information heretofore furnished to such Person by or on behalf of the status Company and details of, its Subsidiaries and (ii) terminate the access of any modification to, Persons other than Parent and its Representatives to any such inquiry, expression of interest, proposal “data room” hosted by the Company or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality its Subsidiaries or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and Representatives relating to any of such information contained therein that is non-confidential)Acquisition Transaction.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Icg Group, Inc.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause Holdco and the other Group Companies and instruct and use reasonable best efforts to cause its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seekencourage (including by means of furnishing or disclosing information), entertain, knowingly encourage, knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal Company Acquisition Proposal; (ii) furnish or offer that constitutesdisclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Group Company); or (v) submit otherwise cooperate in any Acquisition Proposal way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify FLAC promptly upon receipt of any Company ShareholderAcquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep FLAC reasonably informed on a current basis of any modifications to such offer or information. The Seller Guarantors and the Sellers shallCompany shall immediately, and shall cause NewCo, the Company, their respective Affiliates other Group Companies and each of its and their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than FLAC) conducted prior to or on as of the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and by the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer its Subsidiaries that would reasonably be expected to lead to an a Company Acquisition Proposal or the matters described in clause (iv) above, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential Company Acquisition Proposal. For clarity, any actions taken by any of the Representatives of the Group Companies in violation of this Section 5.6(a) will be deemed to be a breach of this Section 5.6(a) by the Group Companies.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, FLAC shall not, and shall instruct and use reasonable best efforts to cause its Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any FLAC Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, a FLAC Acquisition Proposal; (iii) enter into any Contract or other notice that any Person is considering making an arrangement or understanding regarding a FLAC Acquisition Proposal or Proposal; (iv) prepare or take any request for nonpublic information relating steps in connection with an offering of any securities of FLAC (or any Affiliate or successor of FLAC); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the propertiesforegoing. FLAC agrees to (A) notify the Company promptly upon receipt of any FLAC Acquisition Proposal by FLAC, books and to describe the material terms and conditions of any such FLAC Acquisition Proposal in reasonable detail (including the identity of any person or records entity making such FLAC Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. FLAC shall immediately, and shall cause its Representatives to, cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than with the Group Companies) conducted prior to or as of the Company date of this Agreement by any Person or Persons other than Acquiror FLAC that would reasonably be expected to lead to an a FLAC Acquisition Proposal or the matters described in clause (iv) above, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of FLAC or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential FLAC Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition ProposalFor clarity, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity any actions taken by any of the Person or Group making any such Acquisition Proposal, inquiry, expression Representatives of interest, proposal, offer, notice or request (except FLAC in violation of this Section 5.6(b) will be deemed to the extent any be a breach of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 5.6(b) by FLAC.
Appears in 2 contracts
Samples: Business Combination Agreement (NewAmsterdam Pharma Co N.V.), Business Combination Agreement (Frazier Lifesciences Acquisition Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company Sellers shall notnot take, and shall cause the Company not to take, and shall not authorize, encourage, permit or instruct any of their respective Affiliates and Representatives not toor any Representatives of the Company to take, directly or indirectly, any action to: (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce encourage the making, submission or announcement of any inquiry, expression indication of interest, inquiry, proposal or offer that constitutes, from any Person (other than Purchaser or would reasonably be expected its Representatives) relating to lead to, an Acquisition ProposalTransaction; (b) encourage, (ii) enter intoinitiate, participate inin or engage in any discussions, maintain negotiations or continue any other 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, regarding an Acquisition ProposalTransaction; (c) execute, (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into or become bound by any letter of intent or any other Contract contemplating with any Person (other than Purchaser or otherwise its Representatives) relating to or in connection with an Acquisition Transaction; (d) provide any information to any Person (other than Purchaser or its Representatives) concerning an Acquisition Proposal Transaction; or (ve) submit entertain or accept any proposal or offer from, cooperate in any way with, or facilitate or encourage any effort or attempt by any Person (other than Purchaser or its Representatives) relating to an Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers shall, and shall cause NewCothe Company to, the Company, their respective Affiliates and each of shall instruct their respective Representatives and the Representatives of the Company to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any Persons Person (other than Purchaser and its Representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If Within two (2) Business Days following the date hereof, the Sellers shall, or shall cause the Company or a Representative of the Company to, instruct any Representative such Person to return or Affiliate destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Seller GuarantorAcquisition Proposal in accordance with the confidentiality agreements entered into between the Company and any such Person. The Sellers shall, and shall cause the Company to, notify Purchaser as soon as practicable in writing of any indication of interest, inquiry, proposal, offer or request for information relating to an Acquisition Transaction that is received by the Company, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that Sellers’ Representative during the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Interim Period, each of the Seller Guarantors, the Sellers, NewCo and the Company which notice shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, include: (i) any Acquisition Proposala general description of the nature of the Person making or submitting such indication of interest, inquiry, proposal, offer or request (i.e., a “strategic buyer,” a “financial buyer,” etc.) and (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any a summary of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (TILT Holdings Inc.), Agreement and Plan of Merger (TILT Holdings Inc.)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until to the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 VII (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, nor shall Seller permit any of its Affiliates (including, for the avoidance of doubt, the Company and shall cause their respective Affiliates and its Subsidiaries) or Representatives not to, directly or indirectly, indirectly (i) initiate, continue, follow up on or otherwise participate in any discussions or negotiations regarding, or otherwise cooperate in any way with, or assist or participate in any effort or attempt by any Person with respect to, any Alternative Proposal, (ii) enter into or approve any Contract with respect to any Alternative Proposal or (iii) solicit, initiate, seek, entertain, initiate or knowingly encourage, knowingly or take any other action designed or reasonably likely to facilitate, support any inquiries or induce the making, submission or announcement making of any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition any Alternative Proposal. During the Pre-Closing Period, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCoits Affiliates (including, for the avoidance of doubt, the Company, their respective Affiliates Company and each of their respective its Subsidiaries) and Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Alternative Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, Seller shall, and shall cause the Company to, promptly (and in any event within five (5) Business Days) notify Buyer after it or any of its Affiliates has received, during the Pre-Closing Period, any proposal, inquiry, offer or request relating to or constituting, or that could reasonably be expected to lead to, an Alternative Proposal. Such notice to Buyer shall keep Acquiror fully informed indicate the identity of the status Person making such proposal and the material terms and conditions of such proposal, if any. During the Pre-Closing Period, Seller shall, also as promptly as practicable provide Buyer with (i) a copy of any written notice or other written communication from any Person informing Seller, the Company or any of their respective Affiliates during the Pre-Closing Period that it is considering making, or has made a proposal regarding an Alternative Proposal, (ii) a copy of any Alternative Proposal (or any amendment thereof) received by Seller, the Company or any of their respective Affiliates during the Pre-Closing Period and (iii) such other details of, and any modification to, of any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement Alternative Proposal that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Buyer may reasonably request.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Aptargroup Inc)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until to the earlier of the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Agreement, the neither Seller, Seller Guarantors, the Sellers, NewCo and the Company Parent nor any of their Affiliates or representatives shall not, and shall cause their respective Affiliates and Representatives not take any action to, directly or indirectly, (i) solicitencourage, initiate, seekor otherwise engage in discussions or negotiations with, entertainor provide any non-public information to, knowingly encourage, knowingly facilitate, support or induce any Person other than Buyer and its Affiliates and representatives concerning an Alternative Transaction. Seller and Seller Parent will promptly (but in no event later than twenty-four (24) hours) communicate to Buyer the making, submission or announcement terms of any proposal or inquiry that they or any of their Affiliates or representatives may receive in writing in respect of any Alternative Transaction, or of any such negotiations or discussions being sought to be initiated with Seller, Seller Parent or any of their Affiliates or representatives and the identity of such third party initiating any such proposal, inquiry, expression discussion or negotiation. The obligations of interestSeller and Seller Parent in this Section 40(a) shall not apply to any merger, proposal acquisition, stock purchase or offer asset purchase or similar transaction that constitutesdoes not include the Assets or Liabilities, and Seller and Seller Parent shall not have any restriction in pursuing such transaction(s) at any time.
(b) Subject to Section 40(a) above, Seller or Seller Parent, as the case may be, may engage in discussions or negotiations with, or provide non-public information to, any Person who has proposed in writing, an Alternative Transaction, provided the board of directors of Seller or Seller Parent, as the case may be, has determined in good faith, after consulting with its outside legal and financial advisors, that the failure to do so would breach, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCoresult in a breach of, the Company, fiduciary duties under applicable Legal Requirement of the board of directors of the Seller or Seller Parent.
(c) Seller and Seller Parent shall ensure their respective Affiliates and each representatives are aware of their respective Representatives to, promptly following the date hereof and during restrictions described in this Section 40 as reasonably necessary to avoid violations thereof. It is understood that any violation of the Pre-Closing Period, immediately cease and cause to be terminated restrictions set forth in this Section 40 by any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date representative of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers Parent shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.140 by Seller or Seller Parent, as the case may be.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Peoples Community Bancorp Inc /Md/), Purchase and Assumption Agreement (First Financial Bancorp /Oh/)
Exclusive Dealing. (a) From On the date hereof, each of the Acquired Companies and after the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the each Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives its representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions discussion or negotiations negotiation with any Persons conducted prior Person (other than Purchaser and its Affiliates) relating to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate an acquisition of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, Acquired Companies or any of their Affiliates or Representatives receipt ofSubsidiaries, (i) any Acquisition Proposal, (ii) any inquiry, expression equity interests of interest, proposal or offer that 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 for access to any of the propertiesAcquired Companies or any of their Subsidiaries, books or records assets of any of the Company by Acquired Companies or any Person of their Subsidiaries, or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposalany merger, inquiryconsolidation, expression of interestcombination, proposalequity exchange, offerrecapitalization, notice liquidation or request and (2) the identity dissolution involving any of the Person Acquired Companies or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under their Subsidiaries (collectively, a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential“Competing Transaction”). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status Acquired Companies and details ofeach Seller shall, and any modification shall cause their representatives to, refrain from taking, directly or indirectly, any such inquiryaction to (a) solicit, initiate, or encourage the submission of any proposal or indication of interest from any Person relating to a Competing Transaction, (b) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or that may reasonably be expected to lead to, a Competing Transaction (or any proposal or indication of interest relating to a Competing Transaction) or (c) authorize, engage in, or enter into any Contract (other than with Purchaser and its Affiliates) with respect to a Competing Transaction. The Acquired Companies and each Seller will notify Purchaser as soon as practicable but in no event later than three (3) Business Days after receipt by any of them or any of their respective representatives of any expression of interest, proposal or offer (including any request for non-public information) relating to a possible Competing Transaction that is received from any Person on or after the date hereof, identifying the Person making the expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 describing the material terms thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Gsi Group Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Company and the Company Atlantic shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Interests of the Company (or any Affiliate or successor of the Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify Atlantic and SeqLL promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal, and (ii) enter intokeep Atlantic and SeqLL fully informed on a current basis of any modifications to such offer or information.
(c) From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, participate inSeqLL shall not, maintain and shall direct its Representatives not to, directly or continue indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any communications inquiry, proposal or offer (except solely written or oral) with respect to provide written notice as to the existence of these provisionsan SeqLL Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, 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 a SeqLL Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a SeqLL Acquisition Proposal; (iv) except as contemplated by the Agreement, prepare or take any steps in connection with an offering of intent any securities of any SeqLL Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal SeqLL Party); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or knowingly encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the propertiesforegoing; provided, books however, that nothing in this Section 3.14(c) shall prohibit SeqLL from entering into any Contracts in the Ordinary Course of Business, provided that such Contract shall be transferred or records of assigned under the Asset Purchase Agreement. XxxXX agrees to (A) notify the Company and Atlantic promptly upon obtaining any SeqLL Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected SeqLL Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SeqLL Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such SeqLL Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully and Atlantic reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (SeqLL, Inc.), Agreement and Plan of Reorganization (SeqLL, Inc.)
Exclusive Dealing. Seller and the Company shall immediately cease and cause to be terminated any existing discussions by Seller, the Company or any of their Affiliates or Representatives with any Person (aother than Buyer) From and after concerning any proposal relating to any merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction involving Acquired Entities or any direct or indirect sale, lease, exchange, transfer, license, acquisition or disposition of all or any portion of the Agreement Date until Acquired Business or assets or properties of the Closing Acquired Entities (other than sales of inventory or unusable or obsolete property in the earlier termination Ordinary Course of this Agreement in accordance with Article 11 Business) (the an “Pre-Closing PeriodAcquisition Proposal”). At all times prior to Closing, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Representatives and Affiliates and Representatives not toto not, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support induce or induce facilitate the making, submission or announcement of any inquiry, expression of interest, proposal Acquisition Proposal or offer take any action that constituteswould, or would reasonably be expected to lead to, lead to an Acquisition Proposal, ; (ii) enter into, participate in, maintain provide any information regarding Company or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available Business to any Person any non-public information in connection with respect to, or take any other action regarding, any inquiry, expression in response to an Acquisition Proposal or an inquiry or indication of interest, proposal or offer interest that constituteswould, or would reasonably be expected to lead to, lead to an Acquisition Proposal, ; (iii) agree to, accept, engage in any discussions or negotiations with any Person with respect to an Acquisition Proposal; (iv) approve, endorse or recommend any Acquisition Proposal, ; or (ivv) enter into any letter of intent or similar document or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any an Acquisition Proposal. If Without limiting the generality of the foregoing, any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative or Affiliate of any Seller Guarantor, any Seller Company or the CompanySeller, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause not such Representative or Affiliate not is purporting to take, then the act on behalf of Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and or the Company shall promptly notify Acquiror in writing constitute a breach of this Section 5.15 by Seller. At all times prior to Closing, Seller shall, within 24 hours after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression inquiry or indication of interest, proposal or offer interest that would reasonably be expected to could 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 regarding the Company Acquired Entities or for access to any the Acquired Business) advise Buyer in reasonable detail orally and in writing of the properties, books or records same (including the identity of the Company by any Person making or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of submitting such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofrequest, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 the terms thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Share Purchase Agreement (Flotek Industries Inc/Cn/), Share Purchase Agreement (Flotek Industries Inc/Cn/)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the each Company Party shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seekencourage (including by means of furnishing or disclosing information), entertain, knowingly encourage, knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. Each Company Party agrees to (A) notify Parent promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep Parent informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Parent Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Parent Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Parent Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Parent Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any Parent Party (or any Affiliate or successor of any Parent Party) other Contract contemplating or otherwise relating to any Acquisition Proposal than the PIPE Financing; or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Parent agrees to (A) notify the Company Parties promptly upon receipt of any Parent Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Parent Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Parent Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Parent Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully Parties informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Business Combination Agreement (Digital Health Acquisition Corp.), Business Combination Agreement (Digital Health Acquisition Corp.)
Exclusive Dealing. (a) From Commencing on the date of this Agreement and after the Agreement Date until the Closing or first to occur of (x) the earlier Closing, (y) the termination of this Agreement in accordance with Article 11 pursuant to Section 9.01, or (z) August 15, 2007 (such period, the “Pre-Closing Exclusivity Period”), none of the Seller GuarantorsCompany, or the SellersSellers shall, NewCo and nor shall the Company shall notCompany, and shall or the Sellers permit or cause any of their respective Affiliates and Representatives not toAffiliates, Subsidiaries, officers, managers, directors, employees, investment bankers, consultants, representatives or other agents, to directly or indirectly, (i) sell or otherwise transfer any equity interests in the Company or its Subsidiaries or enter into any agreement to sell or otherwise transfer such an equity interest; (ii) take any action to solicit, initiate, seek, entertain, knowingly facilitate, encourage, knowingly facilitatenegotiate, support accept or induce the makingdiscuss, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutesto acquire all or any portion of the Company, its Subsidiaries or would reasonably be expected their assets (excluding any sale of assets in the ordinary course of business), whether by merger, sale of stock, sale of assets, recapitalization or otherwise (each, an “Acquisition Proposal”); (iii) engage in discussions or negotiations with any third party with respect to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, ; (iv) enter into any letter of intent agreement or any other Contract contemplating commitment or otherwise relating consummate or agree to any consummate an Acquisition Proposal or Proposal; (v) submit disclose or provide any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for its Subsidiaries (including this Agreement) in connection with an Acquisition Proposal; (vi) afford access to any of the properties, books or records of the Company by or its Subsidiaries to any Person or Persons other than Acquiror third party that would reasonably be expected to lead to an has made any Acquisition Proposal; or (vii) pursue other acquisitions or divestitures without consulting with Buyer. The Sellers shall, and shall cause the Company and its agents to immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date hereof with respect to any Acquisition Proposal. During the Exclusivity Period, the Sellers shall promptly provide Buyer with written notice of any Acquisition Proposal or indication of interest relating to a potential Acquisition Proposal received by the Sellers or their respective representatives. Such notice shall describe (1) include a reasonably detailed description of the material terms and conditions of such proposed Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Contribution and Sale Agreement (Eagle Rock Energy Partners L P), Contribution and Sale Agreement (Eagle Rock Energy Partners L P)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective direct its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify SPAC promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep SPAC reasonably informed on a reasonably current basis of any modifications to such offer or information.
(c) During the Interim Period, the SPAC Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SPAC Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a SPAC Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a SPAC Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any SPAC Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal SPAC Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that effort or attempt by any Person to do or seek to do any of the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1foregoing.
(bd) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and SPAC agrees to (A) notify the Company shall promptly notify Acquiror in writing after their receipt of, or upon any of their Affiliates or Representatives receipt of, (i) SPAC Party obtaining any SPAC Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SPAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such SPAC Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.), Business Combination Agreement (Phoenix Biotech Acquisition Corp.)
Exclusive Dealing. (a) From Between the date hereof and after the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Date, the Seller Guarantors, the Sellers, NewCo and the Company Parties shall notnot take, and shall cause the other Target Companies not to take, and shall not authorize, encourage, permit or instruct any of their respective Affiliates and Representatives not toor any Representatives of any other Target Company to take, directly or indirectly, any action to: (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce encourage the making, submission or announcement of any inquiry, expression indication of interest, inquiry, proposal or offer that constitutes, from any Person (other than any Buyer or would reasonably be expected its Representatives) relating to lead to, an Acquisition ProposalTransaction; (b) encourage, (ii) enter intoinitiate, participate inin or engage in any discussions, maintain negotiations or continue any other 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, regarding an Acquisition ProposalTransaction; (c) execute, (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into or become bound by any letter of intent or any other Contract contemplating with any Person (other than any Buyer or otherwise its Representatives) relating to or in connection with an Acquisition Transaction; (d) provide any information to any Person (other than any Buyer or its Representatives) concerning an Acquisition Proposal Transaction; or (ve) submit cooperate with, or facilitate or encourage any effort or attempt by any Person (other than any Buyer or its Representatives) relating to an Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers Parties shall, and shall cause NewCothe other Target Companies to, the Company, their respective Affiliates and each of shall instruct their respective Representatives and the Representatives of the other Target Companies to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any Persons Person (other than any Buyer and its Representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If Within two Business Days following the date hereof, the Seller Parties shall, or shall cause a Representative of the Seller Parties to, instruct any such Person to return or destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Acquisition Transaction in accordance with the confidentiality agreements entered into between the applicable Seller Party and any such Person. The Sellers’ Representative shall promptly (but in any event within forty-eight (48) hours of receipt thereof) notify US Buyer of any indication of interest, inquiry, proposal, offer or Affiliate request for information relating to an Acquisition Transaction that is received by any Seller Party or any other Target Company between the date hereof and the Closing Date, which notice shall include the identity of the Person making or submitting such indication of interest, inquiry, proposal, offer or request, and the terms and conditions thereof. Notwithstanding anything to the contrary herein, nothing in this Section 7.20 shall in any way limit the ability of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant its Affiliates and Representatives to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) take any Acquisition action to solicit, initiate or encourage any proposal relating to the business of such Seller other than the Business, the Company or any other Target Company (an “Other Proposal”), (ii) engage in negotiations or discussions, or enter into any inquiryagreement or understanding, expression of interest, proposal or offer that would reasonably be expected relating to lead to an Acquisition any Other Proposal, (iii) provide or disclose any other notice that information relating to any Person is considering making an Acquisition Seller, or afford access to the employees, properties, books, contracts or records of any Seller, to any person or entity relating to any Other Proposal or (iv) otherwise knowingly facilitate the making of any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Other Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Harte Hanks Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, or knowingly encourage, knowingly encourage (including by means of furnishing or disclosing information) or facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer (written or oral) that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect torelating to the Group Companies to any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating successor of any Group Company), including filing, amending or otherwise supplementing any registration statement relating to a public offering of any Acquisition Proposal Equity Securities of any Group Company (or any successor of any Group Company), or causing any such registration statement to become effective; or (v) submit otherwise cooperate in any Acquisition Proposal way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify MEOA promptly (and in any event within two Business Days) upon receipt of any Company ShareholderAcquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep MEOA reasonably informed on a current basis of any modifications to such offer or information. The Seller Guarantors and the Sellers shall, and Company shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than MEOA) conducted prior to or on as of the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and hereof by the Company shall promptly notify Acquiror in writing after their receipt of, or any of its Subsidiaries, and will cause the other Group Companies and its and their Affiliates respective Representatives to cease and cause to be terminated any and all existing activities, discussions or Representatives receipt ofnegotiations, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an a Company Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential Company Acquisition Proposal. For clarity, any actions taken by any of the Representatives of the Group Companies that are inconsistent with this Section 5.6(a) will be deemed to be a breach of this Section 5.6(a) by the Group Companies. For the avoidance of doubt, nothing set forth in this or any other section of this Agreement shall, or shall be deemed to, prohibit the Company from pursuing discussions with potential acquisition candidates or consummating transactions with such candidates provided that no such transaction constitutes a Company Acquisition Proposal.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the MEOA Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, or knowingly encourage (including by means of furnishing or disclosing information) or facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a MEOA Acquisition Proposal; (ii) furnish or disclose any non-public information relating to MEOA or any of its Subsidiaries to any Person in connection with, or that could reasonably be expected to lead to, a MEOA Acquisition Proposal; (iii) enter into any Contract or other notice that any Person is considering making an arrangement or understanding regarding a MEOA Acquisition Proposal or Proposal; (iv) prepare or take any request for nonpublic information relating steps in connection with an offering of any securities of any MEOA Party (or any successor of any MEOA Party); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the propertiesforegoing. MEOA agrees to (A) notify the Company promptly upon receipt of any MEOA Acquisition Proposal by any MEOA Party, books and to describe the material terms and conditions of any such MEOA Acquisition Proposal in reasonable detail (including the identity of any person or records entity making such MEOA Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. For clarity, any actions taken by any of the Company Representatives of MEOA that are inconsistent with this Section 5.6(b) will be deemed to be a breach of this Section 5.6(b) by MEOA. MEOA shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than with the Group Companies) conducted prior to or as of the date hereof by any Person of the MEOA Parties, and will cause its Representatives to cease and cause to be terminated any and all existing activities, discussions or Persons other than Acquiror negotiations, that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such a MEOA Acquisition Proposal, inquiryand shall, expression as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of interest, proposal, offer, notice MEOA or request and (2) any of its Subsidiaries for the identity purpose of the Person or Group making any permitting such Persons to evaluate a potential MEOA Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 2 contracts
Samples: Business Combination Agreement (Minority Equality Opportunities Acquisition Inc.), Business Combination Agreement (Digerati Technologies, Inc.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Transferors and the Company shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or make any filings in connection with a public offering of any Equity Securities or other securities of any Group Company (or any Affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than Bannix) to do or seek to do any of the foregoing. The Company agrees to (A) notify Bannix promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep Bannix reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Bannix shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Bannix Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Bannix Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any understanding regarding a Bannix Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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) otherwise cooperate in any request for nonpublic information relating way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than any Group Company) to the Company do or for access seek to do any of the properties, books or records of foregoing. Bxxxxx agrees to (A) notify the Company promptly upon receipt of any Bannix Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Bannix, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Bannix Acquisition Proposal in reasonable detail (including the identity of any person or entity making such Bannix Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information.
(c) For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 5.6 shall not prohibit the Company, Bannix or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 5.6 (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or Bannix Acquisition Proposal, inquiryas applicable, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request the covenants and any of such information agreements contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 5.6.
Appears in 2 contracts
Samples: Business Combination Agreement (Bannix Acquisition Corp.), Business Combination Agreement (Bannix Acquisition Corp.)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and neither the Company nor the Sellers shall nottake, and shall cause their respective Affiliates and Representatives Affiliates, officers, directors, executive employees, representatives, consultants, financial advisors, attorneys, accountants or other agents not toto take, directly or indirectly, (i) any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce the making, submission engage in discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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, 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 any Acquisition Proposal, (iv) enter into any letter agreement or arrangement with any Person (other than Purchaser and/or its respective Affiliates, officers, directors, employees, representatives, consultants, financial advisors, financing sources, attorneys, accountants and other agents) concerning any purchase of intent any of the Company’s equity securities or any other Contract contemplating merger, sale of assets outside of the ordinary course of business or otherwise similar transaction involving or relating to the Company or any of its Subsidiaries, other than assets sold in the ordinary course of business (each such acquisition transaction, an “Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors Transaction”), and the Sellers shall, and shall cause NewCo, the Company, Company and their respective Affiliates Affiliates, officers, directors, executive employees, representatives, consultants, financial advisors, attorneys, accountants and each of their respective Representatives toother agents, promptly following the date hereof and during the Pre-Closing Period, shall immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations and other communications with any Persons Person conducted heretofore with respect to any such Acquisition Transaction; provided that Purchaser hereby acknowledges that prior to or on the date of this Agreement Agreement, the Sellers and the Company have provided information relating to the Company and have afforded access to, and engaged in discussions with, other Persons in connection with respect 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 the Seller or the Company of this Section 6.4. Notwithstanding the foregoing, the Sellers and the Company may respond to any unsolicited proposal regarding an Acquisition ProposalTransaction by indicating that the Sellers and the Company are subject to an exclusivity agreement and are unable to provide any information related to the Company or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Transaction for as long as this Agreement remains in effect. If any Representative director or Affiliate officer of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, Company takes any action that the Seller Guarantors or the Sellers are Company is obligated pursuant to this Section 6.1 6.4 to cause such Representative or Affiliate Person not to take, then the Seller Guarantors and the Sellers Company shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
6.4. The Company shall, as promptly as reasonably practicable after obtaining knowledge thereof (b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other no event later than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe one (1) day after obtaining such knowledge), notify Purchaser if any Person has made an Acquisition Transaction, including the material terms and conditions of such Acquisition Proposal, inquiry, expression Transaction (unless disclosure of interest, proposal, offer, notice or request such terms and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except conditions is prohibited by a confidentiality agreement executed prior to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialdate hereof).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Better Choice Co Inc.), Stock Purchase Agreement (Better Choice Co Inc.)
Exclusive Dealing. (a) From and after Neither the Agreement Date until the Closing Seller, nor any of its agents or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not torepresentatives will take, directly or indirectly, (i) any action to initiate, continue, assist, solicit, initiatereceive, seeknegotiate, entertainencourage or accept any offer or inquiry from any Person (a) to engage in any Business Combination, knowingly encourage(b) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, knowingly facilitaterevocable, support contingent or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesconditional) for, or would reasonably otherwise attempt to consummate, any Business Combination or (c) to furnish or cause to be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue furnished any communications (except solely to provide written notice as information with respect to the existence of these provisions) Seller or negotiations regarding, or deliver or make available its assets to any Person (other than as contemplated in this Agreement) who the Seller knows or has reason to believe is in the process of considering any Business Combination; provided that prior to the Closing Date, if the Board of Directors of the Seller reasonably determines the Business Combination constitutes a Superior Proposal (as defined below), then, to the extent required by the fiduciary obligations of the Board of Directors of the Seller, as determined in good faith by a majority thereof after consultation with independent counsel (who may be the Seller's regularly engaged independent counsel), the Seller may, in response to an unsolicited request, furnish non-public information with respect toinformation, 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal and afford access to the vote properties, books, records, officers, employees and representatives of any Company Shareholder. The Seller Guarantors and the Sellers shallSeller, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, participate in discussions or negotiations regarding the Superior Proposal and, provided that the Seller has complied with any Persons conducted prior the provisos to or on the date of its rights to terminate this Agreement pursuant to Section 11.1(c) hereof, enter into an agreement with respect to any Acquisition or approve or recommend to its shareholders a Superior Proposal. If Without limiting the foregoing, it is understood that any Representative violation of the restrictions set forth in the preceding sentence by any officer or Affiliate director of any Seller Guarantor, any the Seller or any financial advisor, attorney or other advisor or representative of the CompanySeller, whether in his or her capacity as not such or in any other capacity, takes any action that person is purporting to act on behalf of the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to takeotherwise, then the Seller Guarantors and the Sellers shall be deemed for all purposes to be a breach of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).6.10
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ophidian Pharmaceuticals Inc), Asset Purchase Agreement (Ophidian Pharmaceuticals Inc)
Exclusive Dealing. (a) From and after the Agreement Date date hereof until the Closing earlier of the Effective Time or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Termination Date, the Seller Guarantorsif any, the Sellers, NewCo and the Company shall notnot take, and shall cause not permit any of its Subsidiaries, and its and their respective Affiliates officers, directors or employees to take, and shall use its reasonable best efforts to cause its Representatives not toto take, directly or indirectly, (i) any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce the making, submission engage in discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected provide any information to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter agreement with any Person or facilitate, any inquiries or submission of intent proposals or offers from any Person (other Contract contemplating or otherwise relating to than Parent, Merger Sub and/or their respective Affiliates) concerning any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company ShareholderAlternative Transaction. The Seller Guarantors and the Sellers Company shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives its Subsidiaries to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations by the Company, any Subsidiary of the Company or any Representative of the Company or its Subsidiaries with any Persons (other than Parent and Merger Sub) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalAlternative Transaction and request from each Person that has executed a confidentiality agreement with the Company in connection with an Alternative Transaction the prompt return or destruction of all confidential information previously furnished to such Person or its representatives and terminate access by each such Person and its representatives to any online or other data rooms containing any information in respect of the Company or any of its Subsidiaries. If In addition, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to take any Representative action to exempt any Person (other than Parent or Affiliate its Subsidiaries) or any action taken by any such Person from any state takeover statute or similarly restrictive provisions of the Company Organizational Documents, or except with respect to Parent and its Affiliates, grant any Seller Guarantorwaiver or release under, or terminate, amend or otherwise modify any Seller standstill, confidentiality or similar agreement with respect to any equity or debt securities of the CompanyCompany or any of its Subsidiaries, whether in his or her capacity as such or in any other capacity, takes otherwise take any action that would render the Seller Guarantors provisions thereof ineffective. Notwithstanding the foregoing, the Company may respond to any unsolicited proposal regarding an Alternative Transaction by indicating that the Company is subject to a definitive agreement regarding a transaction and, except as provided in such definitive agreement, is unable to provide any information related to the Company or the Sellers are obligated pursuant to any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning an Alternative Transaction for as long as such definitive agreement remains in effect. Except as expressly permitted by this Section 6.1 to cause such Representative 5.4, in no event shall the Company endorse, recommend, make a public statement or Affiliate not to takesupport in any manner any Alternative Transaction, then other than the Seller Guarantors and the Sellers shall be deemed for all purposes of transactions contemplated by this Agreement to have breached this Section 6.1Agreement.
(b) During Except as permitted by this Section 5.4, until the Pre-Closing Period, each of Effective Time or the Seller GuarantorsTermination Date, the SellersCompany (x) shall not, NewCo and shall cause its Subsidiaries and its and their respective directors, officers and employees, and shall use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) effect any Change of Recommendation, or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, confidentiality agreement or any other agreement relating to or providing for any Alternative Transaction (except for confidentiality agreements permitted under Section 5.4(c)); and (y) shall promptly notify Acquiror Parent (but in writing no case later than 48 hours after their receipt) of the receipt ofof any proposal for any Alternative Transaction or any inquiry, offer or request for information with respect to, or that could reasonably be expected to result in, an Alternative Transaction, or any discussions or negotiations sought to be initiated or continued with the Company, any of its Subsidiaries or any of their Affiliates Representatives concerning an Alternative Transaction, indicating, in each case, the identity of the Person or Representatives receipt ofgroup making such Alternative Transaction proposal, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal offer or offer that 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 and a copy of any Alternative Transaction proposal, inquiry, offer or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) request made in writing and the material terms and conditions of such Acquisition Proposalan Alternative Transaction proposal, inquiry, expression of interest, proposal, offer, notice offer or request not made in writing, and thereafter shall keep Parent informed in reasonable detail, on a prompt basis (2and, in any event, within forty-eight (48) the identity hours of the Person Company’s or Group making its representatives’ knowledge of any such Acquisition Proposalevent), of any material developments or modifications to the terms of any such Alternative Transaction proposal, inquiry, expression of interest, proposal, offer, notice offer or request (except including copies of any documents) and the status thereof.
(c) Notwithstanding anything in this Agreement to the extent contrary, at any time prior to the receipt by the Company of the Company Stockholder Approval, if the Company receives an unsolicited bona fide proposal for an Alternative Transaction (provided that the Company has complied in all material respects with this Section 5.4), the Board of Directors of the Company may take the following actions if it determines in good faith, after consultation with the Company’s nationally recognized financial advisors and outside legal counsel, (x) based on the information then available that such Alternative Transaction constitutes or is reasonably likely to constitute a Superior Proposal and (y) that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law:
(i) furnish information to the third party making such proposal, if, and only if, prior to so furnishing such information, such third party has entered into a confidentiality agreement with the Company having terms at least as restrictive in all respects on such third party as the provisions of the Confidentiality Agreement (it being understood that such confidentiality agreement need not prohibit the making or amendment of a proposal for an Alternative Transaction); provided, that (i) if the third party making such proposal for an Alternative Transaction is a competitor of the Company or any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Periodits Subsidiaries, the Company shall keep Acquiror fully informed not provide any competitively sensitive non-public information to such Person in connection with any actions permitted by this Section 5.4 other than in accordance with “clean team” or other similar procedures reasonably designed to limit any materially adverse effect on the Company or any of its Subsidiaries of the status sharing of such information and details of(ii) if such third party is not a competitor of the Company, the confidentiality agreement need not include restrictions to provide for such procedures; and
(ii) engage in discussions or negotiations with such third party with respect to the proposal for an Alternative Transaction; provided, however, that the Company shall promptly (and in any modification toevent within forty-eight (48) hours) (x) notify Parent upon the commencement of such discussions or negotiations, (y) disclose the identity of such third party who has made a proposal for an Alternative Transaction and make available to Parent any non-public information concerning the Company and its Subsidiaries that is provided to any such inquirythird party that was not previously made available to Parent, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror along with a true, correct and complete copy of such inquiry, expression any Alternative Transaction proposal made in writing and the material terms and conditions of interest, any Alternative Transaction proposal or offer and any amendments, correspondence and communications related thereto, if it is not made in writing, and (z) thereafter keep Parent informed in reasonable detail of any developments or modifications to the material terms of any such Alternative Transaction proposal, inquiry, offer or request (including copies of any documents) and the status thereof.
(d) Notwithstanding anything in this Section 5.4 to the contrary, at any time prior to the earlier of the date the Company Stockholder Approval is received or the date on which this Agreement is terminated in accordance with its terms, the Board of Directors of the Company may make a reasonable Change of Recommendation if, but only if:
(i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s nationally recognized financial advisors and its outside legal counsel, that the failure of the Board of Directors of the Company to effect such Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that no Change of Recommendation may be made relating to an Alternative Transaction proposal unless the Board of Directors of the Company shall have determined in good faith, after consultation with the Company’s financial advisors and its outside legal counsel, that a proposal for an Alternative Transaction constitutes a Superior Proposal and that concurrently with such Change of Recommendation, the Board of Directors of the Company authorizes and approves the Company to, and the Company enters into a definitive written summary thereofagreement with respect to such Superior Proposal and terminates this Agreement pursuant to Section 7.1(g); provided further that no Change of Recommendation may be made if the Change of Recommendation is not made to enter into a definitive written agreement with respect to a Superior Proposal, unless the Change of Recommendation directly addresses an Intervening Event;
(ii) the Company shall have given written notice (the “Change of Recommendation Notice”) to Parent at least five (5) Business Days (the “Notice Period”) prior to effecting such Change of Recommendation that the Company’s Board of Directors has resolved to effect a Change of Recommendation and, if it is not such Change of Recommendation relates to a Superior Proposal, that the Board of Directors has resolved to terminate this Agreement, enter into a definitive written agreement with respect to Superior Proposal and terminate this Agreement pursuant to Section 7.1(g), (A) describing in writing detail the reasons for such Change of Recommendation, and (except B) in the case of Change of Recommendation related to a Superior Proposal, to the extent not previously provided to Parent, attaching a copy of all information required to be provided by this Section 5.4;
(iii) during the Notice Period, the Board of Directors of the Company shall, and shall cause its Representatives to, negotiate with Parent and its Representatives in good faith (if Parent desires to negotiate) to make adjustments to the terms and conditions of this Agreement in such a manner that obviates the need for a Change of Recommendation, and
(iv) upon the expiration of the Notice Period, the Board of Directors of the Company, after consultation with the Company’s nationally recognized financial advisors and outside legal counsel, shall have determined in good faith, after taking into account any proposed revisions by Parent to the terms and conditions of this Agreement and any other information provided by Parent in response to the Change of Recommendation Notice, that (x) in the case of an Intervening Event, the failure of the Board of Directors of the Company to effect such Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, and (y) in the case of a Superior Proposal, the failure of the Board of Directors of the Company to effect such Change of Recommendation and terminate this Agreement in accordance with Section 7.1(g) would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall deliver a new Change of Recommendation Notice to Parent in accordance with clause (ii) above in connection with any change to the facts and circumstances specified in such Change of Recommendation Notice or any material amendment to any Alternative Transaction proposal (including any increase in the consideration payable pursuant thereto in response to any adjustments to the terms and conditions of this Agreement made by Parent) and shall comply again with the requirements of clauses (ii) and (iii) above, except that the Notice Period shall be two (2) Business Days instead of five (5); provided, further, that the Company may not terminate this Agreement in accordance with Section 7.1(g) (regarding Superior Proposals) during any Notice Period.
(e) Nothing contained in this Agreement shall prohibit the Company or its Board of Directors from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act (or any similar communication to shareholders), (ii) issuing a “stop, look and listen” statement pending disclosure of its position thereunder (which in no event shall be deemed a Change of Recommendation) or (iii) making any other disclosure to its stockholders if the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company to make such disclosure would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that in any event the Board of Directors of the Company shall not effect a Change of Recommendation except in accordance with Section 5.4(d).
(f) The approval of the Company’s Board of Directors for purposes of causing any Takeover Laws to be inapplicable to the Merger and the other transactions contemplated by this Agreement shall be irrevocable and unconditional to the fullest extent permitted by Law and no Change of Recommendation or other action shall change such approval.
(g) The Company agrees that any breach of this Section 5.4 (i) by any Main Representative of the Company or any of such information is deemed confidential under a confidentiality its Subsidiaries or non-disclosure agreement that is already in place as any director of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest Company or request and any of its Subsidiaries, or (ii) by any officer or employee of the Company or any of its Subsidiaries, any director of any of its Subsidiaries, or any Other Representative of the Company or any of its Subsidiaries who is acting with the express permission or instruction of the Company or such information contained therein that is non-confidential)Subsidiary, shall be deemed to be a breach of this Section 5.4 by the Company for all purposes of this Agreement.
(h) As used in this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (NewPage Holdings Inc.), Merger Agreement (Verso Paper Corp.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantorseach of FCB, the SellersBP, NewCo TopCo and the Company Bridgeburg shall not, and shall cause their respective Affiliates and its and their respective Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer (written or oral) to acquire, in one transaction or a series of transactions, any assets related to the Business that constitutesare owned by FCB or any of its Subsidiaries, any assets owned by any Group Company or any assets of the Business or any Equity Securities of FCB or any of its Subsidiaries that owns any assets related to the Business, any Group Company, TopCo or Merger Sub (whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise) (an “Acquisition Proposal”, provided that, for the avoidance of doubt, neither this Agreement nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby or those transactions carried out in the ordinary course of business consistent with past practice of FCB or BP shall constitute an “Acquisition Proposal” for the purposes of this Section 6.6(a) or otherwise); (ii) furnish or disclose any non-public information or provide access to employees or other Representatives of FCB or any of its Subsidiaries to any Person in connection with, or would that could reasonably be expected to lead to, an Acquisition Proposal; (iii) enter into any Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering or direct listing of any Equity Securities of FCB or any of its Subsidiaries; or (v) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 6.6(a) or further an Acquisition Proposal. FCB, BP, TopCo, Bridgeburg and Merger Sub agrees to (and to cause their respective Subsidiaries to) (x) notify Mountain promptly upon receipt of any Acquisition Proposal by FCB or any of its Subsidiaries, and to, subject to any confidentiality obligations to which FCB is bound under the Acquisition Proposal, describe the terms and conditions of any such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), and (y) keep Mountain fully informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Mountain shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) to acquire, in one transaction or a series of transactions, any assets of an unaffiliated entity, the Equity Securities of an unaffiliated entity or the businesses of an unaffiliated entity (whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise) (an “Mountain Acquisition Proposal”, provided that, for the avoidance of doubt, neither this Agreement nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby or those transactions carried out in the ordinary course of business consistent with past practice of Mountain shall constitute an “Mountain Acquisition Proposal” for the purposes of this Section 6.6(b) or otherwise); (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an Mountain Acquisition Proposal, ; (iii) 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 (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any regarding an Mountain Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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) otherwise cooperate in any request for nonpublic information relating way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the properties, books foregoing or records of the Company by any Person seek to circumvent this Section 6.6(b) or Persons other than Acquiror that would reasonably be expected to lead to further an Mountain Acquisition Proposal. Such notice shall Mountain agrees to (x) notify FCB promptly upon receipt of any Mountain Acquisition Proposal by Mountain, and to, subject to any confidentiality obligations to which Mountain is bound under the Mountain Acquisition Proposal, describe (1) the material terms and conditions of any such Mountain Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Mountain Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall y) keep Acquiror FCB fully informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Business Combination Agreement (Mountain & Co. I Acquisition Corp.), Business Combination Agreement (Mountain & Co. I Acquisition Corp.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Company and the Company Atlantic shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Interests of the Company (or any Affiliate or successor of the Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify Atlantic promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal, and (ii) enter intokeep Atlantic fully informed on a current basis of any modifications to such offer or information.
(c) From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, participate inthe Company shall not, maintain and shall direct its Representatives not to, directly or continue indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any communications inquiry, proposal or offer (except solely written or oral) with respect to provide written notice as to the existence of these provisionsa Company Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, 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 a Company Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) except as contemplated by the Agreement, prepare or take any steps in connection with an offering of intent any securities of any Company Entity (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Company Entity); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or knowingly encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the propertiesforegoing; provided, books or records of however, that nothing in this Section 3.9(c) shall prohibit the Company from entering into any Contracts in the Ordinary Course of Business. The Company agrees to (A) notify Atlantic promptly upon obtaining any Company Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Company Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Company Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such Company Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully and Atlantic reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 2 contracts
Samples: Merger Agreement (Atlantic International Corp.), Merger Agreement (Staffing 360 Solutions, Inc.)
Exclusive Dealing. (a) From and after Until the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Effective Date, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not toneither FAFCO nor EXPERIAN shall, directly or indirectly, take (and neither FAFCO nor EXPERIAN shall authorize or permit its or its Subsidiaries' officers, directors, employees, representatives, investment bankers, attorneys, accountants or other agents, to so take) any action to encourage, solicit, initiate or, subject to the fiduciary duties of its respective Board of Directors under applicable law as advised by counsel, participate in any way in discussions or negotiations with, or furnish any information to, any Person (other than the Parties hereto or their respective officers, directors, representatives, agents, affiliates or associates) in connection with any possible or proposed (a) merger or other business combination, sale or other disposition of assets constituting the RES Business or the FAREISI Business, as the case may be, (b) sale of shares of capital stock if, as a result of such sale of shares of capital stock, an EXPERIAN Change of Control or a FAFCO Change of Control would occur or (c) similar transactions involving (i) solicitin the case of EXPERIAN, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support the EXPERIAN Interests or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, RES Business and (ii) enter intoin the case of FAFCO, participate in, maintain FAREISI or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCoFAFCO Members, the CompanyFAFCO Interests or the FAREISI Business; provided, their respective Affiliates and each that -------- nothing contained in this Section 5.07 shall restrict or prohibit any disclosure by any Party that is required on the advice of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause counsel in any document to be terminated any and all existing activities, discussions or negotiations filed with any Persons conducted prior to or on the Commission after the date of this Agreement with respect or any disclosure that, in the opinion of the Chief Executive Officer of such Party on advice of counsel, is otherwise required under applicable law. Each of FAFCO and EXPERIAN will promptly communicate to any Acquisition Proposal. If any Representative or Affiliate the other Parties the terms of any Seller Guarantor, proposal or inquiry that it may receive in respect of any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt oftransaction, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression information requested from it or of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal negotiations or offer and any correspondence or communications related thereto and shall provide discussions being sought to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)be initiated with it.
Appears in 1 contract
Samples: Contribution and Joint Venture Agreement (First American Financial Corp)
Exclusive Dealing. (a) From and after During the period from the Agreement Date and continuing until the Closing or earlier of the earlier termination of this Agreement in accordance with Article 11 (and the “Pre-Closing Period”)First Effective Time, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives any of its representatives (the “Company’s Representatives”) not to, directly or indirectly, (i) solicit, initiatewillingly encourage others to solicit, seekor willingly encourage, entertain, knowingly encouragefacilitate or accept any discussions, knowingly facilitate, support proposals or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer offers that constitutesconstitute, or would could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 could 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 Proposal, (v) submit any Acquisition Proposal to the vote of the Company Stockholders or (vi) enter into any Company Shareholderother transaction or series of transactions not in the ordinary course of business consistent with past practice, the consummation of which would impede, interfere with, prevent or delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Mergers or the other transactions contemplated by this Agreement or the Transaction Documents. The Seller Guarantors and the Sellers Company shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective ’s Representatives to, promptly following the date hereof and during the Pre-Closing Period, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Date with respect to any Acquisition Proposal and (B) immediately revoke or withdraw access of any Person (other than Parent and Parent’s representatives and Company’s Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than Parent and Parent’s representatives and Company’s Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If For the avoidance of doubt, if any Representative or Affiliate of any Seller Guarantor, any Seller or the Company’s Representatives, whether in his his, her or her its capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are Company is obligated pursuant to this Section 6.1 5.4 not to cause such Representative take or Affiliate not to take, then the Seller Guarantors and the Sellers Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.4.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the The Company shall promptly immediately (but in any event, within 24 hours) notify Acquiror Parent orally and in writing after their receipt ofby the Company (or, or to the Company’s Knowledge, by any of their Affiliates or Representatives receipt ofthe Company’s Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition ProposalParent and Parent’s representatives. Such notice shall describe (1to the extent permitted by agreements in place as of the Agreement Date) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposalrequest; provided, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall endeavor in good faith to provide as much information as possible pursuant to the terms of such existing agreement. The Company shall keep Acquiror Parent fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and thereto. The Company shall provide to Acquiror a true, correct and complete copy of Parent with forty-eight (48) hours prior notice (or such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it lesser prior notice as is in writing, or a reasonable written summary thereof, if it is not in writing (except provided to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as members of the Agreement Date, in Board) of any meeting of the Board at which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and Board is reasonably expected to discuss any of such information contained therein that is non-confidential)Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (ACELYRIN, Inc.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the each XxXxxxx Company shall not, and shall cause the other XxXxxxx Group Companies not to, and shall direct its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seekknowingly encourage (including by means of furnishing or disclosing information), entertaindiscuss, knowingly encourage, negotiate or knowingly facilitate, support directly or induce the makingindirectly, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a XxXxxxx Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, a XxXxxxx Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a XxXxxxx Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any XxXxxxx Group Company (or any Affiliate or successor of any XxXxxxx Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. Each XxXxxxx Company agrees to (A) notify Acquiror promptly upon receipt of any XxXxxxx Acquisition Proposal by any XxXxxxx Group Company, and to describe the terms and conditions of any such XxXxxxx Acquisition Proposal in reasonable detail (including the identity of the Persons making such XxXxxxx Acquisition Proposal) and (B) keep Acquiror fully informed on a current basis of any modifications to such offer or information. Without limiting the foregoing, it is understood that any violation of the restrictions contained in this Section 6.6(a) by any of the XxXxxxx Companies, or its Representatives acting on the XxXxxxx Companies’ behalf, shall be deemed a breach of this Section 6.6(a) by the XxXxxxx Companies.
(b) Except as required by applicable law and compliance by the Acquiror Board with its applicable fiduciary obligations, from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Acquiror shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), discuss, negotiate or knowingly facilitate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an Acquiror Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an Acquiror Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding an Acquiror Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of Acquiror (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of Acquiror); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the propertiesforegoing. Xxxxxxxx agrees to (A) notify the XxXxxxx Companies promptly upon receipt of any Acquiror Acquisition Proposal by Acquiror, books or records of and to describe the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquiror Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Acquiror Acquisition Proposal) and (B) keep the XxXxxxx Companies fully informed on a current basis of any modifications to such offer or information. Without limiting the foregoing, inquiry, expression of interest, proposal, offer, notice or request (except to the extent it is understood that any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as violation of the Agreement Date, restrictions contained in which case such notice will disclose this Section 6.6(b) by the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writingAcquiror, or its Representatives acting on the Acquiror’s behalf, shall be deemed a reasonable written summary thereof, if it is not in writing (except to breach of this Section 6.6(b) by the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Acquiror.
Appears in 1 contract
Samples: Business Combination Agreement (Marblegate Acquisition Corp.)
Exclusive Dealing. (a) From and after Prior to the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Agreement, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not permit any of its Subsidiaries to, directly and the Company and its Subsidiaries shall not authorize or indirectlypermit any officer, (i) director or employee of, or any financial advisor, attorney, accountant or other advisor or representative retained by, the Company or any of its Subsidiaries to, solicit, initiate, seekknowingly encourage or facilitate the submission of proposals or offers relating to a Takeover Proposal or endorse or enter into any agreement with respect to, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement any Takeover Proposal. The Company shall promptly advise FACO orally and in writing of any inquiryTakeover Proposal or any inquiries or discussions with respect thereto and shall promptly, expression but in any event within two Business Days of interestreceipt, furnish to FACO a copy of any such written proposal or offer that constitutesa written summary of the material terms of any such oral proposal. Neither the Board of Directors of the Company nor any committee thereof shall (a) withdraw or modify, or would reasonably be expected propose to lead towithdraw or modify, in a manner adverse to FACO the approval or recommendation by the Board of Directors of the Company of the Mergers or this Agreement or (b) approve or recommend, or propose to approve or recommend, any Takeover Proposal or any other acquisition of outstanding Company Common Stock other than pursuant to the Mergers or this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Board of Directors of the Company from (i) furnishing information pursuant to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a Person who has indicated, without any solicitation by the Company or any Subsidiary or representative thereof after the date of this Agreement, an Acquisition interest in making a Takeover Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) engaging in discussions 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 Proposalsuch unsolicited Person, (iii) agree tofollowing receipt of a Takeover Proposal from an unsolicited Person, accept, approve, endorse taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or recommend any Acquisition Proposalotherwise making disclosure to its shareholders, (iv) enter into any letter following receipt of intent a Takeover Proposal from an unsolicited Person, failing to make or any other Contract contemplating withdrawing or otherwise relating modifying its recommendation and/or declaration of advisability of the Mergers and/or adoption of this Agreement, and to any Acquisition Proposal the extent it does so, the Company may refrain from calling, providing notice of and/or holding the Company Shareholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote of its shareholders to adopt this Agreement, (v) submit waiving the provisions of any Acquisition Proposal confidentiality and/or standstill agreement to which the Company is a party, (vi) taking any action required to be taken by any non-appealable, final order of a court of competent jurisdiction and/or (vii) making any disclosure or filing required by applicable law (including Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations or order of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (i) through (v) only to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action extent that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes Board of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each Directors of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror have concluded in writing good faith after their receipt of, or any consulting with its outside legal counsel and financial advisor that the failure to take such action would be inconsistent with the discharge of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 its fiduciary duties to the Company or for access to any of the properties, books or records shareholders of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)applicable law.
Appears in 1 contract
Exclusive Dealing. (a) From and after Until the Agreement Date until earlier of (i) the Closing or the earlier and (ii) termination of this Agreement in accordance with Article 11 (Agreement, none of the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company Sellers nor Ahold USA shall nottake, and shall cause not authorize or permit their respective Affiliates and Representatives not subsidiaries or Affiliates, or its or their respective officers, directors, members, employees, agents, representatives, consultants, financial advisors (including, without limitation, Xxxxxxx Xxxxx & Company), attorneys, accountants, or any other party to so take, any action to, directly or indirectly, (i) solicitencourage, solicit or initiate, seekor encourage submission of, entertaininquiries, knowingly encourageproposals or offers relating to the disposition of the Membership Interests, knowingly facilitate, support the Purchased Assets or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesBusiness, or would reasonably be expected to lead toequity interests of GGH, an Acquisition ProposalGG-GA, GG-TN or any RE Holding LLC, or any portion thereof, in all cases directly or indirectly, including by way of merger or similar transaction (ii) enter intoany such transaction, a “Competing Transaction”), or participate in, maintain or continue in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingregarding any Competing Transaction, or deliver or make available furnish to any Person party any non-public information with respect toto the acquisition of Membership Interests, the Purchased Assets, the Business or take any other action regardingequity interests of GGH, any inquiryGG-GA, 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 any Acquisition Proposal, (iv) enter into any letter of intent GG-TN or any other Contract contemplating or otherwise relating to any Acquisition Proposal or RE Holding LLC. Notwithstanding the foregoing, the sale of inventory in the ordinary course of business shall not be prohibited by this Section 6.6.
(vb) submit any Acquisition Proposal to Immediately following the vote execution of any Company Shareholder. The Seller Guarantors and this Agreement, the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates Ahold USA and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated Affiliates shall terminate any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date by any of this Agreement them heretofore with respect to any Acquisition Proposal. If any Representative a Competing Transaction and request each Person which has heretofore executed a confidentiality agreement in connection with its consideration of engaging in a Competing Transaction to return all confidential information heretofore furnished to such Person by or Affiliate on behalf of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Sellers.
(bc) During Until the Pre-Closing Period, each earlier of the Seller GuarantorsClosing or termination of this Agreement, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or if any of their Affiliates the Sellers or Representatives receipt of, (i) any Acquisition Proposal, (ii) any Ahold USA receives an unsolicited inquiry, expression of interest, proposal or offer that would reasonably be expected relating to lead to an Acquisition Proposal, a Competing Transaction (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company thereto), such Seller or Ahold USA, for access to themselves and on behalf of their Affiliates, shall promptly, but in any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe event within one (1) Business Day, notify the material terms and conditions Buyer verbally or in writing of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication inquiry or offer.
(d) Each of interest or request Sellers and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodAhold USA acknowledges that, the Company shall keep Acquiror fully informed in view of the status transactions contemplated by this Agreement, Buyer would not have an adequate remedy at law for money damages in the event that this Section 6.6 has not been performed in accordance with its terms. Each of Sellers and details ofAhold USA therefore agrees that Buyer shall be entitled to specific enforcement of the terms hereof in addition to any other remedy to which it may be entitled, at law or in equity, and any modification to, shall not be required to prove actual damages in any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)action for specific performance.
Appears in 1 contract
Samples: Purchase Agreement (Pantry Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and, with respect to clauses (iii) and (iv), the Company’s current or future parent entity, Affiliate, or Subsidiary, and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support endorse, recommend, accept, discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related thereto; (v) consummate any Company Acquisition Proposal or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons other than Purchaser and its Affiliates regarding a Company Acquisition Proposal, (B) notify Purchaser promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Purchaser reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Purchaser Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an Purchaser Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an Purchaser Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding an Purchaser Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any Purchaser Party (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of Purchaser); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Purchaser agrees to (A) notify the Company promptly upon receipt of any Purchaser Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Purchaser Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Purchaser Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Purchaser Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Integrated Wellness Acquisition Corp)
Exclusive Dealing. (a) From During the period from the date hereof and after through the Agreement Date until earlier to occur of the Closing or Date and the earlier termination of date that this Agreement is terminated in accordance with Article 11 (the “Pre-Closing Period”)IX, the Seller Guarantors, the Sellers, NewCo and the each Company Party shall not, and shall cause its controlled Affiliates and Subsidiaries and direct its and their respective Affiliates and Representatives not to, directly or indirectly, enter into any Contract with, solicit or knowingly encourage or facilitate offers or inquiries from, provide information, or access to properties or assets, to or discuss or negotiate with, any Person (other than the Parent Parties) relating, or reasonably expected to lead, to (i) solicitany direct or indirect acquisition or purchase of a majority of the equity interests of, initiateor all or substantially all of the assets of, seek, entertain, knowingly encourage, knowingly facilitate, support any Company Party or induce the making, submission or announcement Subsidiary of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, Company Party; (ii) enter intoany merger, participate inconsolidation, maintain amalgamation, take-over or continue business combination in respect of any communications (except solely to provide written notice as to the existence Company Party or Subsidiary of these provisions) any Company Party 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 the liquidation or recommend any Acquisition Proposal, dissolution (iv) enter into any letter or the adoption of intent or any other Contract contemplating or otherwise a resolution relating to any Acquisition Proposal liquidation or (vdissolution) submit any Acquisition Proposal to the vote of any Company ShareholderParty or material Subsidiary thereof (clauses (i) – (iii), an “Alternative Transaction”). The Seller Guarantors Company Parties shall be jointly and the Sellers severally liable for any breach of this provision by its Representatives. Each Company Party shall, and shall cause NewCo, the Company, their respective its Affiliates and each of Subsidiaries and shall direct its and their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date execution of this Agreement by the Company, any of its Subsidiaries or its or any of their respective Representatives with respect to any Acquisition Proposal. If Alternative Transaction, request the prompt return or destruction of all confidential information previously furnished and terminate access to any Representative physical or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as electronic data rooms related to a potential Alternative Transaction previously granted to such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Person.
(b) During the Pre-Closing PeriodThe Company shall promptly, each and in any event within 24 hours of the Seller GuarantorsCompany obtaining knowledge of the receipt thereof, the Sellers, NewCo and the Company shall promptly notify Acquiror advise Parent in writing after their receipt of, of any Alternative Transaction or any of their Affiliates inquiry relating to or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposalany Alternative Transaction, (iii) any the financial and other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice Alternative Transaction or request inquiry (including any changes thereto) and (2) the identity of the Person or Group making proposing any such Acquisition Proposal, Alternative Transaction or inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Merger Agreement (Forward Air Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify DYNS promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep DYNS fully informed on a current basis of any modifications to such offer or information.
(c) During the Interim Period, the DYNS Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a DYNS Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a DYNS Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a DYNS Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any DYNS Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal DYNS Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that the Seller Guarantors effort or the Sellers are obligated pursuant attempt by any Person to this Section 6.1 do or seek to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each do any of the Seller Guarantors, the Sellers, NewCo and foregoing. DYNS agrees to (A) notify the Company shall promptly notify Acquiror in writing after their receipt of, or upon any of their Affiliates or Representatives receipt of, (i) DYNS Party obtaining any DYNS Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such DYNS Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such DYNS Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Dynamics Special Purpose Corp.)
Exclusive Dealing. (a) The Company shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Acquisition Proposal. From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies not to, and shall not authorize or permit their respective Affiliates Representatives to, and shall use their reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); (v) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal, including without limitation any “standstill” or similar provisions thereunder; or (iivi) enter intootherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications (except solely to provide written notice as to the existence of these provisions) effort or negotiations regarding, or deliver or make available to attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify SPAC promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep SPAC reasonably informed on a current basis of any modifications to such offer or information. The Company shall also provide SPAC with written confirmation that the Company has advised, in writing, the Person making such Company Acquisition Proposal that the Company and its Representatives are contractually prohibited from furnishing any non-public information regarding the Company to any Person in connection with or in response to a Company Acquisition Proposal and from engaging in discussions or negotiations with any Person with respect to any Company Acquisition Proposal.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause its Representatives not to, directly or take any other action regardingindirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a SPAC Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a SPAC Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a SPAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of SPAC or Merger Sub (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of SPAC or Merger Sub); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. SPAC agrees to (A) notify the Company promptly upon receipt of any SPAC Acquisition Proposal by any Person SPAC or Persons other than Acquiror that would reasonably be expected Merger Sub, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SPAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such SPAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. SPAC shall keep Acquiror fully informed of also provide the status and details ofCompany with written confirmation that SPAC has advised, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent Person making such SPAC Acquisition Proposal that SPAC and its Representatives are contractually prohibited from furnishing any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already public information regarding SPAC to any Person in place as connection with or in response to a SPAC Acquisition Proposal and from engaging in discussions or negotiations with any Person with respect to any SPAC Acquisition Proposal. The transfer of SPAC Evaluation Material pursuant to Section 5.16 shall not violate the Agreement Date, in which case such notice will disclose the existence terms of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialthis Section 5.6(b).
Appears in 1 contract
Samples: Business Combination Agreement (Omnichannel Acquisition Corp.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and, with respect to clauses (iii) and (iv), the Company’s current or future parent entity, Affiliate, or Subsidiary, and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support endorse, recommend, accept, discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related thereto; (v) consummate any Company Acquisition Proposal or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons other than Purchaser and its Affiliates regarding a Company Acquisition Proposal, (B) notify Purchaser promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Purchaser reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Purchaser Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written notice as or oral) with respect to the existence of these provisionsa Purchaser Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Purchaser Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Purchaser Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any Purchaser Party (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of Purchaser); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Purchaser agrees to (A) notify the Company promptly upon receipt of any Purchaser Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Purchaser Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Purchaser Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Purchaser Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Integrated Wellness Acquisition Corp)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause its Representatives and the Group Companies not to (i) accept, initiate, respond to, encourage, entertain, solicit, discuss, negotiate, provide information with respect to any transaction or series of related transactions under which any Person(s), directly or indirectly, acquires or otherwise purchases the Company or any of its Affiliates or all or a material portion of the assets, Equity Securities or businesses of the Company or any of its Subsidiaries (whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, purchase of assets, tender offer or otherwise (each such transaction prohibited by this sentence, an “Acquisition Proposal,” provided that, for the avoidance of doubt, neither this Agreement, nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an Acquisition Proposal; (iii) enter into any Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any successor to or parent company of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(a) or further an Acquisition Proposal; provided, further that, notwithstanding anything to the contrary in the foregoing, in no event shall an Acquisition Proposal include any transfer of Company Shares to any party to a Support Agreement or an Affiliate of any party to a Support Agreement to the extent that such Company Shares become subject to the obligations under such Support Agreement. The Company agrees to (A) notify Acquiror promptly upon receipt (and in any event within 48 hours after receipt) of any Acquisition Proposal of it, any other Group Company or any other Person of which they are aware, and to describe the terms and conditions of any such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep Acquiror fully informed on a current basis of any modifications to such offer or information and (C) not (and shall cause its Subsidiaries and their respective Affiliates Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. The Company shall immediately cease and cause to be terminated any discussions or negotiations with any Persons (other than Acquiror and its Representatives) that may be ongoing with respect to an Acquisition Proposal and terminate any such Person’s and such Person’s Representative’s access to any electronic data room. The Company shall not release any third party from, or waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal in any agreement to which it or any Pre-Closing Holder is a party, and shall promptly following the date of this Agreement send a written request (email being sufficient) to any Person to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with an Acquisition Proposal, which written request shall instruct such Person to return or confirm (in writing) destruction of all such confidential information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Acquiror Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly, (i) solicitcommence, accept, initiate, seekrespond to, encourage, entertain, knowingly encouragesolicit, knowingly facilitatediscuss, support negotiate, provide information with respect to any offers for, or induce the making, submission (ii) issue or announcement of any inquiry, expression execute an indication of interest, proposal or offer that constitutesmemorandum of understanding, a letter of intent, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 other similar agreement with respect to, any transaction or take any other action regarding, any inquiry, expression series 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 any Acquisition Proposal, (iv) enter into any letter of intent related transactions under which Acquiror or any other Contract contemplating of its Subsidiaries acquires or otherwise relating to purchases all or a material portion of the assets, Equity Securities or businesses of any Acquisition Proposal person(s) (whether by merger, consolidation, recapitalization, purchase or (vissuance of Equity Securities, purchase of assets, tender offer or otherwise), other than any such transaction(s) submit any Acquisition Proposal with the Company contemplated by this Agreement and the Ancillary Documents. Notwithstanding anything to the vote contrary in this Section 5.8(b), this Section 5.8(b) shall not restrict any Representatives of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Acquiror Parties with respect to any Acquisition Proposal. If discussions or other actions with respect to any Representative investment vehicle now or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any hereafter existing (other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofthan Acquiror), or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)anticipated future investment vehicle.
Appears in 1 contract
Exclusive Dealing. (a) From and after Until the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Effective Date, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not toneither FAFCO nor ----------------- EXPERIAN shall, directly or indirectly, take (and neither FAFCO nor EXPERIAN shall authorize or permit its or its Subsidiaries' officers, directors, employees, representatives, investment bankers, attorneys, accountants or other agents, to so take) any action to encourage, solicit, initiate or, subject to the fiduciary duties of its respective Board of Directors under applicable law as advised by counsel, participate in any way in discussions or negotiations with, or furnish any information to, any Person (other than the Parties hereto or their respective officers, directors, representatives, agents, affiliates or associates) in connection with any possible or proposed (a) merger or other business combination, sale or other disposition of assets constituting the RES Business or the FAREISI Business, as the case may be, (b) sale of shares of capital stock if, as a result of such sale of shares of capital stock, an EXPERIAN Change of Control or a FAFCO Change of Control would occur or (c) similar transactions involving (i) solicitin the case of EXPERIAN, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support the EXPERIAN Interests or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, RES Business and (ii) enter intoin the case of FAFCO, participate in, maintain FAREISI or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCoFAFCO Members, the CompanyFAFCO Interests or the FAREISI Business; provided, their respective Affiliates and each that -------- nothing contained in this Section 5.07 shall restrict or prohibit any disclosure by any Party that is required on the advice of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause counsel in any document to be terminated any and all existing activities, discussions or negotiations filed with any Persons conducted prior to or on the Commission after the date of this Agreement with respect or any disclosure that, in the opinion of the Chief Executive Officer of such Party on advice of counsel, is otherwise required under applicable law. Each of FAFCO and EXPERIAN will promptly communicate to any Acquisition Proposal. If any Representative or Affiliate the other Parties the terms of any Seller Guarantor, proposal or inquiry that it may receive in respect of any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt oftransaction, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression information requested from it or of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal negotiations or offer and any correspondence or communications related thereto and shall provide discussions being sought to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)be initiated with it.
Appears in 1 contract
Samples: Contribution and Joint Venture Agreement (First American Financial Corp)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and its Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify ALPA promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation prohibiting the disclosure of such identity), and (ii) keep ALPA fully informed on a current basis of any modifications to such offer or information.
(c) From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the ALPA Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an ALPA Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an ALPA Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding an ALPA Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any ALPA Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal ALPA Party); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or knowingly encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. ALPA agrees to (A) notify the Company promptly upon obtaining any ALPA Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected ALPA Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such ALPA Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such ALPA Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Alpha Healthcare Acquisition Corp Iii)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier to occur of the Closing or Date and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)pursuant to Section 8.01, the each of Seller Guarantors, the Sellers, NewCo Guarantor and the Company Seller shall not, and shall cause each Transferred Subsidiary and their respective Affiliates other affiliates and their respective Representatives not to, directly or indirectlyinitiate, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support facilitate or induce the making, submission engage in any discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected to lead knowingly provide any information to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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(other than Purchaser, or take any other action regardingits affiliates, 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives or as otherwise provided for in this Agreement or any Ancillary Agreement) concerning, or with a view to facilitate or consummate, any purchase or sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposal of any Transferred Quotas or any material assets of any Transferred Subsidiary or any merger, consolidation, amalgamation or any similar transactions involving any Transferred Subsidiary or any material assets of any Transferred Subsidiary (in each case, other than the sale of products or services in the ordinary course of business consistent with past practice) (each such transaction, an “Acquisition Transaction”). Seller shall (and shall cause its affiliates (including the Transferred Subsidiaries) and their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately ) cease and cause to be terminated any and all existing activitiesdiscussions, discussions communications or negotiations with any Persons Person (other than Purchaser, its affiliates and their respective Representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If any Within five (5) Business Days following the date hereof, Seller shall, or shall cause a Representative or Affiliate of any Seller Guarantor, any Seller or the CompanyTransferred Subsidiaries to, whether instruct any Person that received nonpublic information regarding the Business or any Transferred Subsidiary in his connection with such Person’s consideration of any Acquisition Transaction within the last twelve (12) months to return or her capacity destroy all such information in accordance with the confidentiality agreement entered into between Seller (or one of its affiliates) and any such Person. Subject to any confidentiality agreements between Seller (or one of its affiliates) and any third parties existing as such or of the date of this Agreement, Seller shall promptly (but in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors event within forty-eight (48) hours of receipt thereof) notify Purchaser orally and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or of any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression indication of interest, proposal inquiry, proposal, offer or offer that would reasonably be expected to lead request for information relating to an Acquisition Proposal, Transaction that is received by Seller or its affiliates (iiiincluding the Transferred Subsidiaries) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating on and after the date hereof and prior to the Company or for access to any earlier of the propertiesClosing and the termination of this Agreement, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such which notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) include the identity of the Person making or Group making any submitting such Acquisition Proposalindication of interest, inquiry, expression of interest, proposal, offer, notice offer or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)request.
Appears in 1 contract
Samples: Stock Purchase Agreement (SMART Global Holdings, Inc.)
Exclusive Dealing. (a) From and after Seller nor the Agreement Date until the Closing Acquired Entities nor any of their Affiliates or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not towill, directly or indirectly, (i) solicitdiscuss, encourage, negotiate, undertake, initiate, seekauthorize, entertainrecommend, knowingly encouragepropose or enter into, knowingly facilitatewhether as the proposed surviving, support merged, acquiring or induce the makingacquired corporation or otherwise, submission any transaction involving a merger, consolidation, business combination, purchase or announcement disposition of any inquirymaterial amount of the assets of the Business, expression the Acquired Entities or any capital stock or other ownership interests of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposalthe Acquired Entities other than the transactions contemplated hereby (a “Sale Transaction”) and sales of inventory in the Ordinary Course, (ii) enter intofacilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of a Sale Transaction, (iii) furnish or cause to be furnished, to any Person, any information concerning the Business, operations, properties or assets of the Acquired Entities in connection with a Sale Transaction, or (iv) otherwise cooperate in any way with, or assist or participate in, maintain facilitate or continue encourage, any communications effort or attempt by any other Person to do or seek any of the foregoing.
(except solely to provide written notice as to b) Seller will notify Buyer in writing promptly (but in no event later than one (1) Business Day) after receipt by Seller, the existence Acquired Entities or any of these provisions) their Representatives of any proposal or negotiations regarding, or deliver or make available to offer from any Person other than Buyer to effect a Sale Transaction or any request for non-public information with respect torelating to the Business or the Acquired Entities or for access to the properties, books or records of the Acquired Entities by any Person other than Buyer. Such notice will indicate the identity of the Person making the proposal or offer, or take any other action regarding, any inquiry, expression of interest, intending to make a proposal or offer that constitutesor requesting non-public information or access to the books and records of the Acquired Entities, the material terms of any such proposal or offer, or would reasonably be expected modification or amendment to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse such proposal 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 (v) submit any Acquisition Proposal to the vote offer and copies of any Company Shareholderwritten proposals or offers or amendments or supplements thereto. The Seller Guarantors will keep Buyer informed, on a current basis, of any material changes in the status and any material changes or modifications in the material terms of any such proposal, offer, indication or request.
(c) Seller and the Sellers shall, Acquired Entities will (and shall will cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, ) immediately cease and cause to be terminated any and all existing activities, discussions discussion or negotiations with any Persons Person (other than Buyer) conducted prior to or on before the date of this Agreement hereof with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Sale Transaction.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Stock Purchase Agreement (Fortune Brands Home & Security, Inc.)
Exclusive Dealing. (a) The Company shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Acquisition Proposal. From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the Group Companies and its and their respective Affiliates officers and directors not to and shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) make any filings with the SEC in connection with a public offering of any Equity Securities or other securities of the Company (or any successor or parent company of the Company), other than in connection with the Transactions in accordance with, this Agreement and the Ancillary Documents; or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify SPAC promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail and (B) keep SPAC reasonably informed on a current basis of any material modifications to such offer or information.
(b) SPAC shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a SPAC Acquisition Proposal. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SPAC shall not, and shall cause SPAC Sponsor and its and their respective officers and directors not to and shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SPAC Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, 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 a SPAC Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any understanding regarding a SPAC Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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) otherwise cooperate in any request for nonpublic information relating way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to the Company do or for access seek to do any of the properties, books or records of foregoing. SPAC agrees to (A) notify the Company promptly upon receipt of any SPAC Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected SPAC, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SPAC Acquisition Proposal in reasonable detail and (B) keep the Company reasonably informed on a current basis of any material modifications to such offer or information. For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 5.6 shall not prohibit the Company, SPAC or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 5.6 (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or SPAC Acquisition Proposal, inquiryas applicable, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request the covenants and any of such information agreements contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 5.6.
Appears in 1 contract
Samples: Transaction Agreement (Riverview Acquisition Corp.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (its terms, except as set forth on Section 5.8 of the “Pre-Closing Period”)Company Schedules, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their its controlled Affiliates, and its and such controlled Affiliates’ respective Affiliates directors, officers, employees, accountants, consultants, advisors, attorneys and Representatives agents acting on behalf of the Group Companies not to, directly or indirectly, : (i) solicitaccept, initiate, seek, entertainrespond to, knowingly encourage, knowingly facilitatesolicit, support negotiate, provide information with respect to or induce discuss other offers for the makingdirect or indirect sale, submission merger, transfer, IPO or announcement recapitalization of the Company or any inquiry, expression or all of interest, proposal or offer that constitutesits Subsidiaries, or any securities, business, properties or assets of the Company or any or all of its Subsidiaries, in each case, that would reasonably be expected require the Company to lead toabandon the transactions contemplated hereby (each such transaction prohibited by this sentence, an “Acquisition Proposal”, provided that, for the avoidance of doubt, neither this Agreement, nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby or any of the matters set forth on Section 5.8 of the Company Schedules shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information of the Group Companies to any Person in connection 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 any Acquisition Proposal, (iv) enter into any letter Contract regarding an Acquisition Proposal; (iv) prepare a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating successor to or otherwise relating to parent company of any Acquisition Proposal Group Company); or (v) submit otherwise cooperate in any way with, or assist or knowingly participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(a) or further an Acquisition Proposal Proposal; provided, that nothing herein shall restrict the Company Board from changing its recommendation to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing PeriodHolders of Company Stock in favor of the approval and adoption of this Agreement and the Merger prior to the date on which the Written Consent is delivered if, following the receipt of a Superior Proposal by the Company, the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to so change its recommendation as a result of such Superior Proposal would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law (a “Company Change in Recommendation”); provided, further, that the Company (to the extent lawful and reasonably practicable) shall first provide STPC at least forty-eight (48) hours prior written notice of any such Company Change in Recommendation. The Company agrees to (A) notify STPC promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any Acquisition Proposal that it or any other Group Company receives and to describe the terms and conditions of any such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep STPC reasonably informed on a reasonably current basis of any modifications to such offer or information and (C) not (and to cause its Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement (other than STPC and its Representatives) that may be ongoing with respect to an Acquisition Proposal as of the date hereof and terminate any Acquisition Proposal. If such Person’s and such Person’s Representative’s access to any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1electronic data room.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, Notwithstanding (i) any Acquisition ProposalCompany Change in Recommendation, (ii) the making of any inquiryAcquisition Proposal or (iii) anything to the contrary contained herein, expression unless this Agreement has been validly terminated in accordance with Section 7.1 prior to taking any of interestthe following actions, proposal (A) in no event shall the Company or offer that would reasonably be expected to lead any of the Group Companies 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 with respect to an Acquisition Proposal, (iiiB) the Company shall otherwise remain subject to the terms of this Agreement, including the Company’s obligation to take all actions necessary to cause the Written Consent to be duly executed and delivered and to otherwise solicit the Required Company Shareholder Approval in accordance with Section 5.15, and (C) the Company shall not release any other notice that third party from, or waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal, in any agreement to which it or any of its Subsidiaries is a party, and, with respect to any Acquisition Proposal involving the sale of more than 50% of the voting securities of the Company or 50% or more the consolidated net revenue, net income or assets of the Company and its Subsidiaries, shall as promptly as practicable following the date hereof send a written request (email being sufficient) to any Person is considering making to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with such an Acquisition Proposal in the last two years, which written request shall instruct such Person to return or confirm (in writing) destruction of all such confidential information.
(c) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the STPC Parties shall not, and each of them shall cause their Representatives not to on behalf of the STPC Parties, directly or indirectly: (i) accept, initiate, respond to, knowingly encourage, solicit, negotiate, provide information with respect to or discuss other offers with respect to any merger, capital stock exchange, asset acquisition, stock purchase, reorganization, recapitalization or similar business combination with any Person other than the Company and its Representatives (each, a “STPC Proposal”), (ii) issue or execute any Contract, indication of interest, memorandum of understanding, letter of intent, or any other similar agreement with respect to a STPC Proposal, (iii) commence, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way in connection with a STPC Proposal, or (iv) commence, continue or renew any request for nonpublic information relating due diligence investigation regarding a STPC Proposal. STPC agrees to (A) notify the Company or for access promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any STPC Proposal that it receives and to any of describe the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and STPC Proposal in reasonable detail (2) including the identity of the Person Persons making such STPC Proposal), (B) keep the Company reasonably informed on a reasonably current basis of any modifications to such offer or Group making information and (C) not (and to cause its Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice Persons. STPC shall immediately cease and cause to be terminated any discussions or request negotiations with any Persons (except other than the Company and its Representatives) that may be ongoing with respect to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place STPC Proposal as of the Agreement Date, in which case date hereof and terminate any such notice will disclose Person’s and such Person’s Representative’s access to any electronic data room. Notwithstanding anything to the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Periodcontrary, the Company foregoing shall keep Acquiror fully informed not restrict STPC’s Affiliates (including Affiliates of Sponsor) in any way with respect to the pursuit of any transaction by such Affiliates not related to STPC.
(d) Notwithstanding (i) the making of any inquiry or proposal with respect to a STPC Proposal or (ii) anything to the contrary contained herein, unless this Agreement has been validly terminated in accordance with Section 7.1, (A) in no event shall STPC or Merger Sub 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 STPC Proposal or terminate this Agreement in connection therewith, and (B) STPC and Merger Sub shall otherwise remain subject to the terms of this Agreement, including STPC’s obligation to use reasonable best efforts to obtain the approval of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is Transaction Proposals at the STPC Shareholders Meeting in writing, or a reasonable written summary thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)accordance with Section 5.10.
Appears in 1 contract
Samples: Merger Agreement (Star Peak Corp II)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates its Representatives and Representatives the Group Companies not to, directly or indirectly, : (i) solicitaccept, initiate, seekrespond to, encourage, entertain, knowingly encouragesolicit, knowingly facilitatenegotiate, support provide information with respect to or induce discuss other offers for the makingdirect or indirect sale, submission merger, transfer, IPO, debt or announcement equity refinancing or recapitalization of the Company or any inquiry, expression or all of interest, proposal or offer that constitutesits Subsidiaries, or any of securities, business, properties or assets of the Company or any or all of its Subsidiaries, or other offers that would require the Company to abandon the transactions contemplated hereby (each such transaction prohibited by this sentence, an “Acquisition Proposal”, provided that, no financing transaction specifically permitted pursuant to Section 5.1(b)(v) of the Company Schedules or Section 5.1(b)(vi) shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise, and for the avoidance of doubt, neither this Agreement, nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating successor to or otherwise relating to parent company of any Acquisition Proposal Group Company); or (v) submit otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(a) or further an Acquisition Proposal. The Company agrees to (A) notify PTAC promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any Acquisition Proposal of it, any other Group Company or any other Person of which they are aware, and to describe the vote terms and conditions of any Company Shareholder. The Seller Guarantors such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep PTAC fully informed on a current basis of any modifications to such offer or information and the Sellers shall, (C) not (and shall cause NewCo, the Company, their respective Affiliates its Subsidiaries and each of their respective Representatives not to) conduct any further discussions with, provide any information to, promptly following the date hereof and during the Pre-Closing Period, or enter into negotiations with such Persons. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior (other than PTAC and its Representatives) that may be ongoing with respect to an Acquisition Proposal and terminate any such Person’s and such Person’s Representative’s access to any electronic data room. The Company shall not release any third party from, or on waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal in any agreement to which it or any Pre-Closing Holder is a party, and shall promptly following the date hereof send a written request (email being sufficient) to any Person to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with an Acquisition Proposal, which written request shall instruct such Person to return or confirm (in writing) destruction of all such confidential information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the PTAC Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: issue or execute an indication of interest, memorandum of understanding, a letter of intent, or any other similar agreement with respect to any Acquisition Proposal. If any Representative a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or Affiliate of any Seller Guarantor, any Seller or similar business combination other than with respect to the Company, whether in his or her capacity as such or in any other capacity, takes any action that transactions with the Seller Guarantors or the Sellers are obligated pursuant to Company contemplated by this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors Agreement and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Ancillary Documents.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Exclusive Dealing. (a) From and after the Agreement Execution Date until the Closing or earlier of the earlier termination of this Agreement in accordance with Article 11 and the Closing (the “Pre-Closing Exclusivity Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and nor will it authorize any of its Representatives not to, directly or indirectly, : (i) solicit, initiate, seekdiscuss, entertain, negotiate or knowingly encourage, knowingly facilitateinduce or facilitate the communication, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal Acquisition Proposal or offer Acquisition Inquiry or take any action that constitutes, or would could reasonably be expected to lead to, to an Acquisition Proposal, Proposal or Acquisition Inquiry; (ii) enter into, participate in, maintain or continue any 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 furnish any non-public information regarding the Company to any Person in connection with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected in response to lead to, an Acquisition Proposal, Proposal or Acquisition Inquiry; (iii) agree to, accept, engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal, Proposal (ivsubject to Section 5.11); (v) execute or enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal Transaction; or (vvi) submit publicly propose to do any of the foregoing; provided, however, that, notwithstanding anything contained in this Section 5.9 and subject to compliance with this Section 5.9, prior to obtaining the Required Company Stockholder Vote, the Company may furnish non-public information regarding the Company and its subsidiaries to, and enter into discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal by such Person which the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and such Acquisition Proposal has not been withdrawn) if: (A) neither the Company nor any of its Representatives shall have breached this Section 5.9 in any material respect, (B) the Company Board concludes in good faith based on the advice of outside legal counsel, that the failure to take such action is reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law; (C) the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions) at least as favorable to the vote Company as those contained in the NDA; and (D) substantially contemporaneously with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Purchaser (to the extent such information has not been previously furnished or made available to Purchaser). Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of the Company Shareholder. The Seller Guarantors and (whether or not such Representative is purporting to act on behalf of the Sellers shallCompany) takes any action that, and shall cause NewCo, if taken by the Company, their respective Affiliates and each would constitute a breach of their respective Representatives tothis Section 5.9, promptly following the date hereof and taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.9 by the Company for purposes of this Agreement.
(b) If the Company or any Representative of the Company receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Exclusivity Period, then the Company shall promptly (and in no event later than one Business Day after the Company becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Purchaser orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the material terms thereof). The Company shall keep Purchaser reasonably informed with respect to the status and material terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or proposed material modification thereto.
(c) The Company shall immediately cease and cause to be terminated any existing discussions, negotiations and all existing activities, discussions or negotiations communications with any Persons conducted prior to or on the date of this Agreement with respect Person that relate to any Acquisition Proposal. If any Representative Proposal or Affiliate Acquisition Inquiry as of the Execution Date and request the destruction or return of any Seller Guarantor, any Seller or nonpublic information of the Company, whether in his or her capacity as Company provided to such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Person.
(bd) During For the Pre-Closing Periodavoidance of doubt, each of notwithstanding anything to the Seller Guarantorscontrary herein, the Sellers, NewCo and nothing in this Agreement shall be construed to limit or prohibit the Company shall promptly notify Acquiror in writing after their receipt offrom taking any action, or from not taking any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Dateaction, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request connection with a definitive agreement for a Company Merger and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the to consummate a Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Merger.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective direct its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify SPAC promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep SPAC reasonably informed on a reasonably current basis of any modifications to such offer or information.
(c) During the Interim Period, the SPAC Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SPAC Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a SPAC Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a SPAC Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any SPAC Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal SPAC Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that effort or attempt by any Person to do or seek to do any of the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1foregoing.
(bd) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, SPAC agrees to (i) notify the Company promptly upon any SPAC Party obtaining any SPAC Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SPAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such SPAC Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, ii) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Atlantic Coastal Acquisition Corp. II)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall notnot take, and nor shall cause their respective Affiliates and Representatives not toit permit any of its officers, directly directors, employees, representatives, consultants, financial advisors, attorneys, accountants or indirectlyother agents to take, (i) any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce the making, submission engage in discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected provide any information to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter agreement with any Person (other than Parent, Merger Sub and/or their respective Affiliates) concerning any purchase of intent any of the Company’s equity securities or any merger, tender offer, stock sale, sale of substantial assets or similar transaction involving any Group Company, other Contract contemplating or otherwise than the exercise of outstanding options and other than assets sold in the ordinary course of business (each such acquisition transaction, an “Acquisition Transaction”); provided, however, that each of Parent and Merger Sub hereby acknowledges that prior to the date of this Agreement, the Company has provided information relating to any the Group Companies and has afforded access to, and engaged in discussions with, other Persons in connection with a proposed Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers Company shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, its Subsidiaries to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations by the Company, any Subsidiary of the Company or any representative of the Company or its Subsidiaries with any Persons (other than Parent and Merger Sub) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of all confidential information previously furnished to such Person or its representatives and terminate access by each such Person and its representatives to any online or other data rooms containing any information in respect of the Company or any of its Subsidiaries. If Notwithstanding the foregoing, the Company may respond to any Representative unsolicited proposal regarding an Acquisition Transaction by indicating that the Company is subject to a definitive agreement regarding a transaction and is unable to provide any information related to the Group Companies or Affiliate of entertain any Seller Guarantor, proposals or offers or engage in any Seller negotiations or the Company, whether in his or her capacity discussions concerning an Acquisition Transaction for as long as such or definitive agreement remains in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the effect. The Company shall promptly notify Acquiror (but in writing after their receipt of, or any event within 24 hours) advise Parent of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to regarding 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 Transaction and the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request proposal and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request proposal and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully Parent informed on a current basis in all material respects of the status and details of, and any modification to, of any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Merger Agreement (Genpact LTD)
Exclusive Dealing. (a) From Subject to the obligations of the Company and after NASOP as debtors-in-possession under the Bankruptcy Code, from the date of this Agreement Date until the Closing entry of the Sales Procedures Order or another order by the Bankruptcy Court approving the Break-up Fee and the Expense Reimbursements contemplated by Section 12.1(b) or the entry of an order denying the Sales Procedures Order by the Bankruptcy Court, neither the Seller nor any of its Affiliates, agents or representatives shall, directly or indirectly, initiate, encourage or solicit (other than by transmitting copies of pleading and exhibits filed of record in the Bankruptcy Case) any discussions or negotiations with any Person (other than the Purchaser) concerning a Competing Transaction; provided, however, that, notwithstanding anything to the contrary in this sentence, the Seller and its Affiliates, agents or representatives may consider and respond to inquiries from, engage in discussions or negotiations with, and provide any information to, any Person concerning a Competing Transaction as long as such inquiries were not initiated, encouraged or solicited by the Seller or any of its Affiliates, agents or representatives in violation of this Agreement; and provided, further however, that the Seller shall not provide any information to any Person in connection with a Competing Transaction that Seller has not also provided to Purchaser. The Seller shall promptly notify Purchaser of any proposal by any Person with respect to a Competing Transaction.
(b) During the period from the date of entry of the Section 363/365 Order to the earlier of the termination of this Agreement in accordance with Article 11 (its terms and the “PreClosing, subject to their obligations as debtors-Closing Period”)in-possession under the Bankruptcy Code, neither the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or nor any of their Affiliates or Representatives receipt of, representatives shall seek any relief or approval from the Bankruptcy Court which is inconsistent with this Agreement or the Section 363/365 Order.
(ic) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 Notwithstanding anything to the Company or for access to any of contrary in this Section 8.4, if the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under Bankruptcy Court approves a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodCompeting Transaction, the Company shall keep Acquiror fully informed of Seller will have the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide right to Acquiror a true, correct and complete 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 (except terminate this Agreement pursuant to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialSection 11.2(f).
Appears in 1 contract
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until through the Closing or the earlier termination of this Agreement in accordance with Article 11 (pursuant to Section 9.01, each of the “Pre-Closing Period”), Company and the Seller Guarantors, the Sellers, NewCo and the Company shall not, and each of the Company and the Seller shall cause their its respective Affiliates Subsidiaries, officers, directors, managers, employees, Affiliates, advisors (including investment bankers) and Representatives other authorized agents and representatives not to, directly or indirectly, indirectly (ia) take any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitateinduce, support initiate or induce facilitate the making, submission or announcement of any inquiry, expression of interest, offer or proposal or offer that constitutes, or would reasonably be expected relating to lead to, an Acquisition Transaction (an “Acquisition Proposal, (ii”) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iiib) engage in discussions or negotiations with, or provide any information to, any Person (other than the Purchaser and the Purchaser’s Representatives) concerning any Acquisition Transaction or an Acquisition Proposal, (c) approve, endorse, recommend any Acquisition Proposal, (d) enter into any commitment, understanding, term sheet, letter of intent or similar document or any Contract contemplating or otherwise relating to an Acquisition Proposal, or (e) furnish any information with respect to, assist or participate in or facilitate in any other notice manner any effort or attempt by any Person (other than the Purchaser and its Affiliates) to do or seek to do any of the foregoing. Without limiting the generality of the foregoing, the Company and the Seller each acknowledges and agrees that any Person violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any of its Subsidiaries or any of its or their respective Affiliates (whether or not such Subsidiary or Affiliate is considering making an Acquisition Proposal purporting to act on its behalf) or any of its or their respective representatives (iv) any request for nonpublic information relating to acting on the behalf of the Company or for access the Seller) shall be deemed to any constitute a breach of the properties, books or records of this Section 7.05 by the Company by or the Seller, as applicable. The Company and the Seller shall promptly (and in no event later than twenty-four (24) hours after receipt of any Person Acquisition Proposal, any inquiry or Persons other than Acquiror indication of interest that would reasonably be expected to could lead to an Acquisition Proposal. Such notice shall describe ) advise Purchaser orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal (1) including the material terms and conditions identity of the Person making or submitting such Acquisition Proposal, inquiry, expression indication of interestinterest or request, proposaland the material terms thereof in each case, offerto the extent that the provision of such information to Purchaser does not breach any confidentiality obligations that the Seller or the Company have to such third party pursuant to an agreement entered into with such third party prior to the date hereof, notice or request but, for the avoidance of doubt, the Company and (2) the identity of the Person or Group making any Seller shall disclose to Purchaser that such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice inquiry or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest has been received) that is made or request submitted by any Person prior to the Closing and any modification or proposed modification thereto. Promptly following the execution and delivery of such information contained therein that is non-confidential). During the Pre-Closing Periodthis Agreement, the Company shall keep Acquiror fully informed of and the status and details ofSeller shall, and any modification shall each cause its Subsidiaries and its and their respective Affiliates and representatives to, immediately cease and cause to be terminated any such inquiry, expression of interest, proposal existing discussions with any Person (other than Purchaser and its Affiliates and representatives) that relate to any Acquisition Proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)potential Acquisition Proposal.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Exclusive Dealing. (a) From The Company and their respective Representatives each acknowledges that the Buyer will be required to spend substantial time and effort in conducting due diligence and may incur substantial fees and expenses in connection with such due diligence efforts, the preparation of the Definitive Agreement, and related matters. Accordingly, for a period from and after the Agreement Date until the Closing or the earlier termination date of this Agreement in accordance with Article 11 Letter is executed by all Parties (the “PreExecution Date”) and ending on the earlier of (i) the date that is forty-Closing five (45) days from the Execution Date, provided that such forty-five (45) day period shall be extended for thirty (30) days if the Parties mutually agree in writing and are engaged in good faith negotiations regarding the Definitive Agreement (the “Exclusivity Period”), (ii) the Seller GuarantorsTermination Date (as defined in Section 15 below), or (iii) the execution and delivery of the Definitive Agreement between the Parties.
(a) During the Exclusivity Period the Company, Sellers nor any of their respective employees, officers, directors, shareholders, affiliates, agents or representatives nor their respective employees, officers, directors, shareholders, affiliates, agents or representatives (collectively, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to“Representatives”) will, directly or indirectly, (i) solicitthrough any director, initiateofficer, seekagent, entertainfinancial adviser, knowingly encouragethird party or otherwise, knowingly facilitatesolicit or entertain offers from, support negotiate with or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with respect thereto with any Persons conducted prior person other than Buyer, or in any manner encourage, discuss, accept, or consider any proposal, formal or informal, of any other person relating to the offering, sale, divestiture or on acquisition of all or any portion of the date Company and/or its respective capital stock, assets or its business, whether directly or indirectly and whether through purchase, merger, consolidation, combination or otherwise in whatever form (other than sales of inventory in the ordinary course of the Company’s business, as applicable) or enter into any other transaction that would preclude the consummation of the Acquisition with Buyer consistent with the terms set forth in this Letter. The Sellers hereby agree that any action taken by any of the Representatives of the Sellers or their respective affiliates or Representatives that would constitute a breach of this Agreement with respect to Letter if taken by any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller the Sellers or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or will constitute a breach of this Letter by the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Company.
(b) During the Pre-Closing PeriodThe Company, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly will immediately notify Acquiror Buyer in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) regarding any inquiry, expression of interestoffer, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) contact during the Exclusivity Period between the Company and/or their respective Representatives and any other notice that person regarding any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposalproposal or contract or any related event, indication of interest transaction or request item, including the material terms thereof.
(c) The Parties shall fully cooperate with each other and any of such information contained therein that is non-confidential). During use their reasonable best efforts to execute and deliver the Pre-Closing Period, Definitive Agreement and all other documents necessary or desirable to effect the Company shall keep Acquiror fully informed transactions contemplated hereunder as soon as possible and to thereafter satisfy each of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except conditions to the extent any closing specified thereunder, subject to Section 14 of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Part II below.
Appears in 1 contract
Exclusive Dealing. (a) From and after the Agreement Date date hereof until the earlier of the Closing or Time and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Agreement, the Seller Guarantors, the Sellers, NewCo and the Company IAMGOLD shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seekor knowingly encourage any inquiries or proposals from, entertainnegotiate with, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 consider any other action regarding, any inquiry, expression of interest, proposal inquiries or offer that constitutesproposals from, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent or agreement with, any person (other Contract contemplating or otherwise than Purchaser and its affiliates) relating to any Acquisition Proposal transaction involving the sale of the business or any of the assets of Niobec and the Subsidiary that individually or in the aggregate would be material to Niobec on a consolidated basis or the sale of any shares of Niobec or any shares of the Subsidiary (vother than as expressly permitted in this Agreement). IAMGOLD will discontinue access of third parties to any confidential information of Niobec or the Subsidiary and: (a) submit will on or before the second (2nd) Business Day following the date hereof, request the return or destruction of all information provided to any Acquisition Proposal third party which has entered into a confidentiality agreement with IAMGOLD or its affiliates which remains in force relating to the vote sale of the business or any of the assets of Niobec and the Subsidiary that individually or in the aggregate would be material to Niobec on a consolidated basis or the sale of any Company Shareholdershares of Niobec or any shares of the Subsidiary; and (b) on the Closing Date, to the extent not prohibited by the terms of the confidentiality agreement, assign and deliver to the Purchaser each confidentiality agreement in force as of such date and, to the extent that Niobec is not a direct beneficiary of any such confidentiality agreement, if not prohibited by the terms of the confidentiality agreement, provide a copy of each such confidentiality agreement to the Purchaser. The Seller Guarantors and To the Sellers shallextent that IAMGOLD is not permitted by the terms of a confidentiality agreement to assign such agreement to the Purchaser, IAMGOLD shall notify the Purchaser of the existence of such confidentiality agreement and, if not prohibited by the terms of the confidentiality agreement, provide the Purchaser with a copy of such confidentiality agreement, and hold the benefit of such confidentiality agreement in trust for the Purchaser and enforce such confidentiality agreement at the request of the Purchaser and at the Purchaser’s expense. IAMGOLD shall cause NewCo, promptly (and in any event within two (2) Business Days) notify the Company, their respective Affiliates and each Purchaser of their respective Representatives to, promptly following any written proposal received by IAMGOLD after the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on Closing relating to the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each sale of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, business or any of their Affiliates the assets of Niobec and the Subsidiary that individually or Representatives receipt ofin the aggregate would be material to Niobec on a consolidated basis or the sale of any shares of Niobec or any shares of the Subsidiary. For certainty, this Section 5.12 shall not apply in respect of any transaction or proposed transaction (iincluding any take-over bid, acquisition, merger, arrangement, amalgamation, business combination, the sale of any assets or any similar transaction) any Acquisition Proposal, (ii) any inquiry, expression involving IAMGOLD; provided that such transaction or proposed transaction does not include the sale of interest, proposal the business or offer that 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 for access to any of the properties, books assets of Niobec and the Subsidiary that individually or records in the aggregate would be material to Niobec on a consolidated basis or the sale of any shares of Niobec or any shares of the Company by any Person or Persons Subsidiary (other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already as expressly permitted in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialthis Agreement).
Appears in 1 contract
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until the earlier of the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller GuarantorsGroup Companies shall not take, the Sellersnor shall it permit any of its Affiliates, NewCo and the Company shall notofficers, and shall cause their respective Affiliates and Representatives not directors, employees, Representatives, consultants, financial advisors, attorneys, accountants or other agents to, directly or indirectly, : (i) solicit, initiateinitiate discussions or engage in negotiations with any Person (whether such negotiations are initiated by any of the Group Companies, seekan Affiliate, entertaina third party or otherwise), knowingly encourageother than Buyer or its Affiliates, knowingly facilitate, support or induce relating to the making, submission or announcement possible acquisition of any inquirymaterial portion of the equity or assets of Seller or any of the Group Companies (whether by way of merger, expression purchase of interestequity, proposal purchase of assets, loan or offer that constitutes, otherwise) or would reasonably be expected to lead to, a material refinancing or recapitalization of the Group Companies (an “Acquisition Proposal, Transaction”); (ii) enter into, participate in, maintain or continue any 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 or documentation with respect toto the Group Companies to any Person, other than Buyer or take any other action regardingits Affiliates or its or their Representatives, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected relating to lead to, an Acquisition Proposal, Transaction; or (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent definitive agreement with any Person, other than Buyer or any other Contract contemplating or otherwise relating to any its Affiliates, effecting an Acquisition Proposal or Transaction.
(vb) submit any Acquisition Proposal In addition to the vote other obligations under this Section 6.6, Seller shall promptly (and in any event within three (3) Business Days after receipt thereof by Seller or its Representatives) advise Buyer orally or in writing of the existence of any Company Shareholder. The Seller Guarantors and the Sellers shallproposed Acquisition Transaction, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement request for information with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofTransaction, or any of their Affiliates inquiry with respect to or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would which could reasonably be expected to lead to an result in a potential 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) Transaction and the material terms and conditions of such request, Acquisition ProposalTransaction or inquiry.
(c) Seller agrees that the rights and remedies for noncompliance with this Section 6.6 shall include having such provision specifically enforced by any court having 52 equity jurisdiction, inquiry, expression of interest, proposal, offer, notice or request it being acknowledged and (2) the identity of the Person or Group making agreed that any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice breach or request (except threatened breach shall cause irreparable injury to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement Buyer and that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall money damages would not provide an adequate remedy to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Buyer.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, Company and each of the Sellers, NewCo and the Company Sellers shall notnot take, and shall cause not authorize, encourage, permit or instruct any of their respective Affiliates and Representatives not toor any Representatives of the Company to take, directly or indirectly, any action to: (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce encourage the making, submission or announcement of any inquiry, expression indication of interest, inquiry, proposal or offer that constitutes, from any Person (other than Purchaser or would reasonably be expected its Representatives) relating to lead to, an Acquisition ProposalTransaction; (b) encourage, (ii) enter intoinitiate, participate inin or engage in any discussions, maintain negotiations or continue any other 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, regarding an Acquisition ProposalTransaction; (c) execute, (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into or become bound by any letter of intent or any other Contract contemplating with any Person (other than Purchaser or otherwise its Representatives) relating to or in connection with an Acquisition Transaction; (d) provide any information to any Person (other than Purchaser or its Representatives) concerning an Acquisition Proposal Transaction; or (ve) submit accept any proposal or offer from, cooperate in any way with, or facilitate or encourage any effort or attempt by any Person (other than Purchaser or its Representatives) relating to an Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates Company and each of the Sellers shall instruct their respective Representatives and the Representatives of the Company to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any Persons Person (other than Purchaser and its Representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If Within two (2) Business Days following the date hereof, the Sellers and the Company shall instruct any Representative such Person to return or Affiliate destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Seller GuarantorAcquisition Proposal in accordance with the confidentiality agreements entered into between the Company and any such Person. The Sellers and the Company shall promptly (but in any event within twenty-four (24) hours of receipt thereof) notify Purchaser orally and in writing of any indication of interest, inquiry, proposal, offer or request for information relating to an Acquisition Transaction that is received by the Company, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that Sellers’ Representative during the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Interim Period, each of the Seller Guarantors, the Sellers, NewCo and the Company which notice shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, include: (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person making or Group making any submitting such Acquisition Proposalindication of interest, inquiry, expression of interest, proposal, offer, notice offer or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofrequest, and any modification to, any such inquiry, expression of interest, proposal or offer the terms and any correspondence or communications related thereto conditions thereof; and shall provide to Acquiror a true, correct (ii) an accurate and complete copy of all written materials provided in connection with such inquiry, expression indication 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest offer or request and any of such information contained therein that is non-confidential)request.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, or knowingly encourage, knowingly encourage (including by means of furnishing or disclosing information) or facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer (written or oral) that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect torelating to the Group Companies to any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) except for any existing Contract listed on the Company Disclosure Schedules, prepare or take any steps in connection with an offering of intent any securities of any Group Company (or any other Contract contemplating successor of any Group Company), including filing, amending or otherwise supplementing any registration statement relating to a public offering of any Acquisition Proposal Equity Securities of any Group Company (or any successor of any Group Company), or causing any such registration statement to become effective; or (v) submit otherwise cooperate in any Acquisition Proposal way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify FRLA promptly (and in any event within two (2) Business Days) upon receipt of any Company ShareholderAcquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep FRLA reasonably informed on a current basis of any modifications to such offer or information. The Seller Guarantors and the Sellers shall, and Company shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than FRLA) conducted prior to or on as of the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and hereof by the Company shall promptly notify Acquiror in writing after their receipt of, or any of its Subsidiaries, and will cause the other Group Companies and its and their Affiliates respective Representatives to cease and cause to be terminated any and all existing activities, discussions or Representatives receipt ofnegotiations, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an a Company Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential Company Acquisition Proposal. For clarity, any actions taken by any of the Representatives of the Group Companies that are inconsistent with this Section 5.6(a) will be deemed to be a breach of this Section 5.6(a) by the Group Companies. For the avoidance of doubt, nothing set forth in this or any other section of this Agreement shall, or shall be deemed to, prohibit the Company from pursuing discussions with potential acquisition candidates or consummating transactions with such candidates provided that no such transaction constitutes a Company Acquisition Proposal.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the FRLA Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, or knowingly encourage (including by means of furnishing or disclosing information) or facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a FRLA Acquisition Proposal; (ii) furnish or disclose any non-public information relating to FRLA or any of its Subsidiaries to any Person in connection with, or that could reasonably be expected to lead to, a FRLA Acquisition Proposal; (iii) enter into any Contract or other notice that any Person is considering making an arrangement or understanding regarding a FRLA Acquisition Proposal or Proposal; (iv) prepare or take any request for nonpublic information relating steps in connection with an offering of any securities of any FRLA Party (or any successor of any FRLA Party); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the propertiesforegoing. FRLA agrees to (A) notify the Company promptly upon receipt of any FRLA Acquisition Proposal by any FRLA Party, books and to describe the material terms and conditions of any such FRLA Acquisition Proposal in reasonable detail (including the identity of any person or records entity making such FRLA Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. FRLA shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than with the Group Companies) conducted prior to or as of the Company date hereof by any Person of the FRLA Parties, and will cause its Representatives to cease and cause to be terminated any and all existing activities, discussions or Persons other than Acquiror negotiations, that would reasonably be expected to lead to an a FRLA Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of FRLA or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential FRLA Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition ProposalFor clarity, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity any actions taken by any of the Person or Group making any such Acquisition Proposal, inquiry, expression Representatives of interest, proposal, offer, notice or request (except FRLA that are inconsistent with this Section 5.6(b) will be deemed to the extent any be a breach of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 5.6(b) by FRLA.
Appears in 1 contract
Samples: Business Combination Agreement (Fortune Rise Acquisition Corp)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until through the earlier of the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)pursuant to Section 7.1, the Seller Guarantors, the Sellers, NewCo and the Company shall notnot take, and shall cause their nor will the Company permit any of its respective Affiliates and Representatives not toaffiliates, representatives, consultants, financial advisors, attorneys, accountants or other agents to take, directly or indirectly, (i) any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce engage in discussions or negotiations with, or provide any information to or enter into any agreement with any person (other than Parent, Newco or their affiliates) concerning any Acquisition Proposal. The Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Acquisition Proposal and request the makingprompt return or destruction of all confidential information previously furnished.
(b) Notwithstanding Section 5.7(a), submission prior to the Effective Time, nothing in this Agreement shall prevent the Company or announcement its Board of Directors from engaging in discussions or negotiations with, or, subject to a customary confidentiality agreement, furnishing or disclosing any inquiryinformation or data relating to the Company or its Subsidiary to, expression or giving access to the assets or the books and records of interestthe Company or its Subsidiary to, proposal any Person who, after the date hereof, makes a bona fide written Acquisition Proposal, after the date hereof that was not solicited and did not otherwise result from a breach of Section 5.7(a), if the Board of Directors, acting in good faith, has determined (A) after consultation with its financial advisor, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, and (B) after consultation with its outside legal counsel, that the failure to take such action will result in a breach of its fiduciary obligations to the stockholders of the Company under applicable laws.
(c) The Board of Directors of the Company shall not make a Company Adverse Recommendation Change or offer approve or recommend, or propose to approve or recommend, or allow the Company to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that constitutes, is intended to or would reasonably be expected to lead to, an any Acquisition ProposalProposal (other than a confidentiality agreement referred to in Section 5.7(a)), except that, and subject to compliance with this Section 5.7, the Board of Directors of the Company may make a Company Adverse Recommendation Change, if (iiA) enter intothe Board of Directors, participate inacting in good faith, maintain or continue any communications has determined (except solely x) after consultation with its financial advisor, that such Acquisition Proposal constitutes a Superior Proposal and (y) after consultation with its outside legal counsel, that the failure to provide take such action will result in a breach of its fiduciary obligations to the shareholders of the Company under applicable laws; provided, however, that no Company Adverse Recommendation Change may be made until after the tenth business day following Parent’s receipt of written notice as (a “Notice of Adverse Recommendation”) from the Company advising Parent that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment 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 any Acquisition Proposal, (iv) enter into any letter of intent financial terms or any other Contract contemplating or otherwise relating material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new ten business day period). In determining whether to make a Company Adverse Recommendation Change, the Board of Directors of the Company shall take into account any Acquisition Proposal or (v) submit any Acquisition Proposal changes to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date financial terms of this Agreement with respect proposed by Parent in response to any Acquisition Proposal. If any Representative a Notice of Adverse Recommendation or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1otherwise.
(d) In addition to the obligations of the Company set forth in paragraphs (a), (b) During the Pre-Closing Periodand (c) of this Section 5.7, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror advise Parent orally and in writing after their receipt of, or of any of their Affiliates or Representatives receipt of, (i) any Acquisition Takeover Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice Takeover Proposal or request inquiry (including any changes thereto) and (2) the identity of the Person or Group person making any such Acquisition Proposal, Takeover Proposal or inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the The Company shall keep Acquiror Parent fully informed of the status and details of, and (including any modification to, change to any material term thereof) of any such Takeover Proposal or inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Exclusive Dealing. Parent and the Target Company shall, and shall cause their respective controlled Affiliates and other Representatives to, immediately cease and cause to be terminated any existing discussions, communications or negotiations with, or any electronic data site access provided to, any Person (aother than Purchaser and its Representatives) From concerning any Acquisition Transaction or proposal, inquiry, submission or offer relating to an Acquisition Transaction (an “Acquisition Proposal”). At all times between the date hereof and after the Agreement Date until earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Parent and the Target Company shall not, and shall cause their respective controlled Affiliates and other Representatives not toto not, take any action to directly or indirectly, : (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support encourage or induce the making, submission or announcement of any inquiry, expression Acquisition Proposal; (b) provide any non-public information regarding the Target Company or the Transferred Subsidiary or the Target Business to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest, proposal or offer interest that constitutes, or would reasonably be expected to lead to, to an Acquisition Proposal, ; (iic) enter into, participate in, maintain or continue have any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingsubstantive communications, or deliver engage in any substantive discussions or make available to negotiations, with any Person any non-public information with respect to, to an Acquisition Transaction 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, ; (iiid) agree to, accept, publicly approve, endorse or recommend any Acquisition Proposal, Proposal or Acquisition Transaction; or (ive) enter into any letter of intent or similar document or any other Contract contemplating relating to, or otherwise relating to consummate, any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following At all times between the date hereof and during the Pre-earlier of the Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date termination of this Agreement in accordance with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantorits terms, any Seller or the CompanyParent shall, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing within 48 hours after their receipt of, by Parent or any of their its controlled Affiliates or Representatives receipt of, (i) of any Acquisition Proposal, (ii) any inquiry, expression inquiry or indication of interest, proposal or offer interest that 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 for access to any advise Purchaser in reasonable detail orally and in writing of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe same (1) including the material contents and terms and conditions of such Acquisition Proposal, inquiry, expression inquiry or indication of interest). Notwithstanding the foregoing, proposalParent, offer, notice the Target Company and their respective Representatives may respond to any unsolicited proposal regarding an Acquisition Proposal or request Acquisition Transaction by indicating that the Parent and (2) the identity of the Person or Group making Target Company are subject to an exclusivity agreement and are unable to provide any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except non-public information related to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodTarget Company, the Company shall keep Acquiror fully informed of Transferred Subsidiary and the status and details of, and Target Business or entertain any modification to, any proposals or offers or engage in negotiations or discussions concerning an Acquisition Proposal or Acquisition Transaction so long as such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is exclusivity agreement remains in writing, or a reasonable written summary thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)effect.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and, with respect to clauses (iii) and (iv), the Company’s current or future parent entity, Affiliate, or Subsidiary, and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support endorse, recommend, accept, discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related thereto; (v) consummate any Company Acquisition Proposal or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons other than Dragoneer and its Affiliates regarding a Company Acquisition Proposal, (B) notify Dragoneer promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Dragoneer reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Dragoneer Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written notice as or oral) with respect to the existence of these provisionsa Dragoneer Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Dragoneer Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Dragoneer Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any Dragoneer Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Dragoneer Party); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Dragoneer agrees to (A) notify the Company promptly upon receipt of any Dragoneer Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Dragoneer Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Dragoneer Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Dragoneer Growth Opportunities Corp.)
Exclusive Dealing. (a) From and after the Agreement Date until the Closing or the earlier termination date of this Agreement in accordance through the Closing Date or until such time that this Agreement is terminated pursuant to Section 9.1, EPB and Seller shall not, and shall not authorize or permit any manager, officer, employee or agent of EPB, directly or indirectly, to (i) solicit, initiate or encourage (including by way of furnishing or disclosing non-public information) any inquiries or the making of any proposal with Article 11 respect to any financing, restructuring, recapitalization, merger, consolidation or other business combination or any other extraordinary transaction involving EPB or the acquisition of all or any significant part of the assets or equity securities of EPB (the an “Pre-Closing PeriodAcquisition Transaction”); (ii) negotiate, explore or otherwise engage in discussions with any Person (other than Buyer and its representatives and agents) with respect to any Acquisition Transaction, or which may reasonably be expected to lead to a proposal for an Acquisition Transaction, or enter into any contract or understanding with respect to any such Acquisition Transaction; (iii) provide information with respect to EPB to any Person (other than Buyer and its representatives and agents) relating to a possible Acquisition Transaction; or (iv) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction (other than by Buyer).
(b) As of the date hereof, EPB and Seller Guarantors, the Sellers, NewCo and the Company shall notshall, and shall cause their respective Affiliates Affiliates, officers, directors, managers, employees and Representatives not agents to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or and negotiations with any Persons Person (other than Buyer and its representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If any Representative or Affiliate EPB and Seller, as the case may be, shall notify Buyer promptly of any Seller Guarantorinquiries or proposals received by, any such information requested from, and any requests for negotiations or discussions sought to be initiated or continued with, EPB, Seller or the Companyand their respective Affiliates, whether officers, directors, managers, employees and agents, in his or her capacity as such or in any each case from a Person (other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors than Buyer and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(bits representatives) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead with respect to an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal Transaction or (iv) any request for nonpublic non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition ProposalEPB. Such Any such notice shall describe (1) the material terms and conditions of such Acquisition Proposalinclude, inquirywithout limitation, expression of interest, proposal, offer, notice or request and (2) the identity of the Person making such inquiry or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to proposal and the extent any specific terms of such information is deemed confidential under a confidentiality inquiry or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company EPB shall keep Acquiror fully Buyer promptly informed of the status and details of (including any change to the material terms of, and any modification to, ) any such proposal for an Acquisition Transaction or inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify Redwoods promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep Redwoods fully informed on a current basis of any modifications to such offer or information.
(c) During the Interim Period, the Redwoods Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Redwoods Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a Redwoods Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a Redwoods Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any Redwoods Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Redwoods Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that the Seller Guarantors effort or the Sellers are obligated pursuant attempt by any Person to this Section 6.1 do or seek to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each do any of the Seller Guarantors, the Sellers, NewCo and foregoing. Xxxxxxxx agrees to (A) notify the Company shall promptly notify Acquiror in writing after their receipt of, or upon any of their Affiliates or Representatives receipt of, (i) Redwoods Party obtaining any Redwoods Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Redwoods Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such Redwoods Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Redwoods Acquisition Corp.)
Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) From and after the Agreement Date until the Closing or the earlier termination of this Agreement date upon which BBY gives notice, in accordance with Article 11 Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the “Pre"Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Xxxxxxx Xxxx if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-Closing Period”public information concerning a Sale. If Xx. Xxxx determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), the Seller Guarantors, the Sellers, NewCo and then the Company shall notimmediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and shall cause their respective Affiliates financial advisers, that it must consider and Representatives not to, directly or indirectly, respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce promptly advises BBY of the making, submission or announcement receipt of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposalsuch Other Offer and the Board's conclusions with respect thereto, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each advises BBY of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition ProposalOther Offer, inquiry, expression of interest, proposal, offer, notice or request and (2) including the identity of the Person offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or Group making its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodOther Offer, the Company shall keep Acquiror fully informed will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the status Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and details of, and agrees further to notify the Company within forty-eight (48) hours of any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide determination not to Acquiror proceed with a true, correct and complete 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 (except to transaction as contemplated by the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)parties.
Appears in 1 contract
Samples: Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement (Best Buy Co Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and its Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify AHAC promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation prohibiting the disclosure of such identity), and (ii) keep AHAC fully informed on a current basis of any modifications to such offer or information.
(c) From the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with its terms, the AHAC Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to an AHAC Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an AHAC Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding an AHAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any AHAC Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal AHAC Party); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or knowingly encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. AHAC agrees to (A) notify the Company promptly upon obtaining any AHAC Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected AHAC Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such AHAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such AHAC Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Alpha Healthcare Acquisition Corp.)
Exclusive Dealing. (a) From and after the Agreement Date until date hereof through the earlier of the Closing or Date and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)Agreement, the Seller Guarantors, the Sellers, NewCo Sellers and the Company shall Companies will not, and shall will cause their each of the Sellers’ and the Companies’ respective Representatives and Affiliates and Representatives not to, directly or indirectly, (i) solicit, encourage, initiate, seekaccept, entertainagree to or consummate any proposals, knowingly inquiries or offers from, solicit, encourage, knowingly facilitateinitiate, support enter into or induce the makingparticipate in inquiries, submission discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected to lead provide any information to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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, (other than Purchasers 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives toor Governmental Entities with respect to the Transaction), promptly following concerning the date hereof purchase of the Acquired Companies (or any membership interests or capital stock of any thereof) or all or any portion of the Acquired Companies’ businesses or any merger, sale of all or substantially all assets or similar transaction involving the Acquired Companies (or any membership interests or capital stock of any thereof) or all or any portion of the Acquired Companies’ businesses or otherwise cooperate with or assist or participate in or encourage or facilitate in any other manner any effort or attempt by any Person to do or seek to do any of the foregoing or to effect any transaction inconsistent with the Transaction. Sellers and during the Pre-Companies will as soon as practicable notify Purchasers if, at any time prior to the Closing PeriodDate, any bona fide proposal, offer or written inquiry with respect to any of the foregoing is made and of the terms thereof and the identity of the Person making the same. Sellers and the Companies will cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons Person conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition Proposalof the foregoing with respect to the Acquired Companies. If Sellers and the Companies will promptly request all Persons who have heretofore executed a confidentiality agreement in connection with such Persons’ consideration of any Representative of the foregoing transactions to return or destroy all confidential information heretofore furnished to such Persons by or on behalf of any Seller or any Company or any Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 thereof with respect to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of Acquired Companies in accordance with such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofagreement, and any modification to, any will use commercially reasonable efforts to enforce all material obligations under such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)agreements.
Appears in 1 contract
Exclusive Dealing. (a) From and after the Agreement Effective Date until through the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)pursuant to Section 8.1, the without Buyer’s prior written consent, Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the Company and the Subsidiary not to, and shall take all action necessary to ensure that none of their respective Affiliates and or Representatives not toshall, directly or indirectly, solicit or encourage inquiries or proposals with respect to a (ia) solicitCompeting Transaction or (b) Permitted Alternative Transaction that is inclusive of the Company and/or the Subsidiary (but not Permitted Alternative Transactions that are not inclusive of the Company and/or the Subsidiary), initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 furnish any non-public information with respect about the Company in relation to a Competing Transaction, participate in any negotiations, discussions or other contacts concerning a Competing Transaction, or enter into any agreement, letter of intent, or agreement-in-principle relating to, or take effect or consummate any Competing Transaction. For the avoidance of doubt, the foregoing shall not prohibit Seller and its Affiliates and its and their respective Representatives from engaging in negotiations, discussions or other action regardingcontacts, any inquiryin each case concerning a Permitted Alternative Transaction, expression but only in the event Seller or its Affiliates or Representatives receives an unsolicited offer with respect to such a Permitted Alternative Transaction. Immediately upon the execution of interestthis Agreement, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) 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 (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCothe Company and the Subsidiary to, the Company, and shall take all action necessary to cause their respective Affiliates and each of their respective or Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated discontinue any and all existing activities, ongoing discussions or negotiations (other than any ongoing discussions with any Persons conducted prior Buyer or its Affiliates or Representatives) relating to a possible Competing Transaction. From the Effective Date through the Closing Date or on the date earlier termination of this Agreement pursuant to Section 8.1, (a) Seller also will cause its officers, directors, employees, Representatives, and agents, and their respective Affiliates to refrain from doing any of the above with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantora Competing Transaction, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing PeriodSeller will immediately (but in any event within 24 hours) notify Buyer if any such bona fide inquiries, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofproposals or requests for information are received by, or any of their Affiliates such negotiations or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal discussions are sought to be initiated with it or offer that 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 for access to any of the properties, books other persons or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected entities referred to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).above; 43
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Black Box Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall notnot take, and shall cause their respective Affiliates and not authorize, encourage, permit or instruct any of its Representatives not toto take, directly or indirectly, any action to: (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce encourage the making, submission or announcement of any inquiryAcquisition Proposal from any Person (other than Buyer or its Representatives); (b) encourage, expression of interestinitiate, proposal participate in or offer that constitutesengage in any discussions, negotiations or would reasonably be expected to lead to, other communications regarding an Acquisition Proposal; (c) execute, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into or become bound by any letter of intent or any other Contract contemplating with any Person (other than Buyer or otherwise its Representatives) relating to or in connection with an Acquisition Proposal; (d) provide any information to any Person (other than Buyer or its Representatives) in response to an Acquisition Proposal; or (e) entertain or accept any Acquisition Proposal from, cooperate in any way with, or facilitate or encourage any effort or attempt by any Person (vother than Buyer or its Representatives) submit any relating to an Acquisition Proposal to the vote of any Company ShareholderProposal. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective instruct its Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any Persons Person conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition Proposal. If Within two (2) Business Days following the date hereof, Seller shall, or shall cause its Representatives to, instruct any Representative such Person to return or Affiliate destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Acquisition Proposal in accordance with the confidentiality agreements entered into between Seller Guarantor, and any such Person. Seller or the Company, whether in his or her capacity as such or shall promptly (and in any other capacity, takes event within twenty-four (24) hours of receipt thereof) notify Buyer orally and in writing of any action Acquisition Proposal that is received by Seller during the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Interim Period, each of the Seller Guarantors, the Sellers, NewCo and the Company which notice shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, include: (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person making or Group making any submitting such Acquisition Proposalindication of interest, inquiry, expression of interest, proposal, offer, notice [*****] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. offer or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofrequest, and any modification to, any such inquiry, expression of interest, proposal or offer the terms and any correspondence or communications related thereto conditions thereof; and shall provide to Acquiror a true, correct (ii) an accurate and complete copy of all written materials provided in connection with 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Acquisition Proposal.
Appears in 1 contract
Exclusive Dealing. Seller and the Company shall immediately cease and cause to be terminated any existing discussions by Seller, the Company or any of their Affiliates or Representatives with any Person (aother than Buyer) From and after concerning any proposal relating to any merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities, recapitalization, tender offer, exchange offer or other similar transaction involving Acquired Entities or any direct or indirect sale, lease, exchange, transfer, license, acquisition or disposition of all or any portion of the Agreement Date until Acquired Business or assets or properties of the Closing Acquired Entities (other than sales of inventory or unusable or obsolete property in the earlier termination Ordinary Course of this Agreement in accordance with Article 11 Business) (the an “Pre-Closing PeriodAcquisition Proposal”). At all times prior to Closing, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Representatives and Affiliates and Representatives not toto not, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support induce or induce facilitate the making, submission or announcement of any inquiry, expression of interest, proposal Acquisition Proposal or offer take any action that constituteswould, or would reasonably be expected to lead to, lead to an Acquisition Proposal, ; (ii) enter into, participate in, maintain provide any information regarding Company or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available Business to any Person any non-public information in connection with respect to, or take any other action regarding, any inquiry, expression in response to an Acquisition Proposal or an inquiry or indication of interest, proposal or offer interest that constituteswould, or would reasonably be expected to lead to, lead to an Acquisition Proposal, ; (iii) agree to, accept, engage in any discussions or negotiations with any Person with respect to an Acquisition Proposal; (iv) approve, endorse or recommend any Acquisition Proposal, ; or (ivv) enter into any letter of intent or similar document or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any an Acquisition Proposal. If Without 37 limiting the generality of the foregoing, any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any Representative or Affiliate of any Seller Guarantor, any Seller Company or the CompanySeller, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause not such Representative or Affiliate not is purporting to take, then the act on behalf of Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and or the Company shall promptly notify Acquiror in writing constitute a breach of this Section 5.15 by Seller. At all times prior to Closing, Seller shall, within 24 hours after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression inquiry or indication of interest, proposal or offer interest that would reasonably be expected to could 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 regarding the Company Acquired Entities or for access to any the Acquired Business) advise Buyer in reasonable detail orally and in writing of the properties, books or records same (including the identity of the Company by any Person making or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of submitting such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofrequest, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 the terms thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Share Purchase Agreement
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify Priveterra promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep Priveterra fully informed on a current basis of any modifications to such offer or information.
(c) During the Interim Period, the Priveterra Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Priveterra Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a Priveterra Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a Priveterra Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any Priveterra Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Priveterra Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that the Seller Guarantors effort or the Sellers are obligated pursuant attempt by any Person to this Section 6.1 do or seek to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each do any of the Seller Guarantors, the Sellers, NewCo and foregoing. Xxxxxxxxxx agrees to (A) notify the Company shall promptly notify Acquiror in writing after their receipt of, or upon any of their Affiliates or Representatives receipt of, (i) Priveterra Party obtaining any Priveterra Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Priveterra Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such Priveterra Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Strathspey Crown Holdings Group, LLC)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) other than in connection with the transactions contemplated pursuant to this Agreement, prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Group Company); or (v) submit otherwise cooperate in any Acquisition Proposal way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify THMA promptly upon receipt of any Company ShareholderAcquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep THMA reasonably informed on a current basis of any modifications to such offer or information. The Seller Guarantors and the Sellers shall, and Company shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than THMA) conducted prior to or on as of the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and hereof by the Company shall promptly notify Acquiror in writing after their receipt of, or any of its Subsidiaries, and will cause the other Group Companies and its and their Affiliates respective Representatives to cease and cause to be terminated any and all existing activities, discussions or Representatives receipt ofnegotiations, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an a Company Acquisition Proposal or the matters described in clause (iv) hereof, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential Company Acquisition Proposal. For clarity, any actions taken by any of the Representatives of the Group Companies that are inconsistent with this Section 6.6(a) will be deemed to be a breach of this Section 6.6(a) by the Group Companies.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the THMA Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a THMA Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, a THMA Acquisition Proposal; (iii) enter into any Contract or other notice that any Person is considering making an arrangement or understanding regarding a THMA Acquisition Proposal or Proposal; (iv) other than in connection with the transactions contemplated pursuant to this Agreement, prepare or take any request for nonpublic information relating steps in connection with an offering of any securities of any THMA Party (or any Affiliate or successor of any THMA Party); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the propertiesforegoing. THMA agrees to (A) notify the Company promptly upon receipt of any THMA Acquisition Proposal by any THMA Party, books and to describe the material terms and conditions of any such THMA Acquisition Proposal in reasonable detail (including the identity of any person or records entity making such THMA Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. For clarity, any actions taken by any of the Company Representatives of THMA that are inconsistent with this Section 6.6(b) will be deemed to be a breach of this Section 6.6(b) by THMA. THMA shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than with the Group Companies) conducted prior to or as of the date hereof by any Person of the THMA Parties, and will cause its Representatives to cease and cause to be terminated any and all existing activities, discussions or Persons other than Acquiror negotiations, that would reasonably be expected to lead to an a THMA Acquisition Proposal or the matters described in clause (iv) hereof, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of THMA or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential THMA Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Business Combination Agreement (Thimble Point Acquisition Corp.)
Exclusive Dealing. (a) From and after the Agreement Original Effective Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Company has not and the Company shall not, and has caused and shall cause the other Group Companies, Parent, Parent GP and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support accept, or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related there or filing or submitting a registration statement (or similar document) with the SEC or make any public statement, announcement or filing with respect to a potential or actual offering of securities, other than as expressly contemplated by this Agreement or any Ancillary Document; (v) consummate any Company Acquisition Proposal; or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons regarding a Company Acquisition Proposal, (B) notify Pathfinder promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide written notice as a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Pathfinder reasonably informed on a current basis of any modifications to such offer or information.
(b) From the existence Original Effective Date until the earlier of these provisionsthe Closing or the termination of this Agreement in accordance with its terms, the Pathfinder Parties has not and shall not, and each of them has caused and shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, seek, knowingly encourage (including by means of furnishing or negotiations regardingdisclosing information), knowingly facilitate, accept, or deliver negotiate, directly or make available indirectly, any inquiry, proposal or offer (whether formal or informal, written, oral or otherwise) with respect to any Person a Pathfinder Acquisition Proposal; (ii) furnish or provide any non-public information with respect toor documents to any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Pathfinder Acquisition Proposal, ; (iii) agree enter into, participate in or continue any discussions or negotiations with any third party in connection with or related to, accept, or approve, endorse accept or recommend any Acquisition Proposal, (iv) enter into any letter of intent intent, term sheet or Contract or other arrangement or understanding regarding any Pathfinder Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with an offering of any securities of Pathfinder (or any controlled Affiliate or successor of Pathfinder), other Contract contemplating than expressly contemplated by this Agreement or otherwise relating to any Acquisition Proposal or Ancillary Document; (v) submit consummate any Pathfinder Acquisition Proposal Proposal; or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote of any Company Shareholderforegoing. The Seller Guarantors and the Sellers shallPathfinder agrees to (A) terminate, and shall cause NewCoits Representatives to terminate, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person or group of Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and than the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any regarding a Pathfinder Acquisition Proposal, (iiB) notify the Company promptly upon receipt of any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that any Person is considering making an Pathfinder Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected Pathfinder Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Pathfinder Acquisition Proposal in reasonable detail (including the identity of any person or entity making such Pathfinder Acquisition Proposal) and to provide a copy of any such Pathfinder Acquisition Proposal, inquiryif extended in writing, expression of interest, proposal, offer, notice or request and (2C) keep the identity Company reasonably informed on a current basis of any modifications to such offer or information.
(c) For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 4.6 shall not prohibit the Company, Pathfinder or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 4.6 (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or Group making any such Pathfinder Acquisition Proposal, inquiryas applicable, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request the covenants and any of such information agreements contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 4.6.
Appears in 1 contract
Samples: Business Combination Agreement (Pathfinder Acquisition Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective its Representatives and Affiliates and Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Representatives) in connection with, or that would reasonably be expected to lead to, an a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.
(b) The Company shall (i) notify Priveterra promptly upon receipt of any Company Acquisition Proposal by the Company, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep Priveterra fully informed on a current basis of any modifications to such offer or information.
(c) During the Interim Period, the Priveterra Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Priveterra Acquisition Proposal, (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person (other than to the Parties and their respective Representatives) in connection with, 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 a Priveterra Acquisition Proposal, (iii) agree to, accept, approve, endorse enter into any Contract or recommend any other arrangement or understanding regarding a Priveterra Acquisition Proposal, (iv) enter into other than in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, prepare or take any letter steps in connection with an offering of intent any securities of any Priveterra Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Priveterra Party), or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacityway with, takes or assist or participate in, or knowingly facilitate or knowingly encourage any action that the Seller Guarantors effort or the Sellers are obligated pursuant attempt by any Person to this Section 6.1 do or seek to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each do any of the Seller Guarantors, the Sellers, NewCo and foregoing. Pxxxxxxxxx agrees to (A) notify the Company shall promptly notify Acquiror in writing after their receipt of, or upon any of their Affiliates or Representatives receipt of, (i) Priveterra Party obtaining any Priveterra Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected and 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 describe the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Priveterra Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the any Person or Group making any such Priveterra Acquisition Proposal), inquiry, expression of interest, proposal, offer, notice or request and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a reasonably current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Priveterra Acquisition Corp.)
Exclusive Dealing. (a) The Company shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Acquisition Proposal. From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company Parties shall not, and shall cause the other Group Companies not to, and shall not authorize or permit their respective Affiliates Representatives to, and shall use their reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer (written or oral) that constitutes, or would may reasonably be expected to lead to, an a Company Acquisition Proposal, ; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or understanding regarding a Company Acquisition Proposal; (iv) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal, including without limitation any Acquisition Proposal “standstill” or similar provisions thereunder; or (v) submit otherwise cooperate in any Acquisition Proposal way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify SPAC promptly upon receipt of any Company Shareholder. The Seller Guarantors and the Sellers shallAcquisition Proposal by any Group Company or Merger Sub, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Company Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person or Group Persons making any such Company Acquisition Proposal, inquiry, expression ) and (B) keep SPAC reasonably informed on a current basis of interest, proposal, offer, notice any modifications to such offer or request information.
(except to b) From the extent any date of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as this Agreement until the earlier of the Closing or the termination of this Agreement Datein accordance with its terms, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company SPAC shall keep Acquiror fully informed of the status and details ofnot, and any modification shall cause its Representatives not to, and shall not authorize or permit their respective Representatives to, and shall use their reasonable best efforts to cause its Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any such inquiry, expression of interest, proposal or offer and (written or oral) with respect to a SPAC Acquisition Proposal; (ii) furnish or disclose any correspondence or communications related thereto and shall provide non-public information to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is Person in writingconnection with, or that could reasonably be expected to lead to, a reasonable written summary thereofSPAC Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a SPAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of any securities of SPAC (or any Affiliate or successor of SPAC); (v) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a SPAC Acquisition Proposal, if it is not including without limitation any “standstill” or similar provisions thereunder; or (vi) otherwise cooperate in writing (except any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the extent do or seek to do any of the foregoing. SPAC agrees to (A) notify the Company promptly upon receipt of any SPAC Acquisition Proposal by SPAC, and to describe the material terms and conditions of any such information is deemed confidential under SPAC Acquisition Proposal in reasonable detail (including the identity of any Person making such SPAC Acquisition Proposal) and (B) keep the Company reasonably informed on a confidentiality current basis of any modifications to such offer or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Mount Rainier Acquisition Corp.)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until through (i) the Closing Date, or (ii) the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)pursuant to Section 8.01 hereof, the Seller Guarantors, the Sellers, NewCo and the Company neither Buyer nor Parent shall not, and shall cause their respective Affiliates and Representatives not to, directly take or indirectly, (i) solicit, initiate, seek, entertain, knowingly permit any other Person on its behalf to take any action to encourage, knowingly facilitate, support initiate or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) engage in discussions or negotiations regardingwith, or deliver or make available to provide 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 any Acquisition Proposal, (iv) enter into any letter of intent agreement or understanding with, any Person (other Contract contemplating or otherwise relating to than Seller, the Company and their representatives) concerning any Acquisition Proposal or with respect to Parent. Each of Buyer and Parent will immediately: (vx) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons parties conducted prior to or on the date of this Agreement heretofore with respect to any of the foregoing; and (y) notify Seller in writing in the event that any of the foregoing receives any requests for information or proposals relating to any Acquisition Proposal. If any Representative or Affiliate Proposal (including the terms of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors proposal and the Sellers shall be deemed for all purposes identity of this Agreement to have breached this Section 6.1the maker thereof).
(b) During Notwithstanding the Pre-Closing Periodforegoing, each of at any time prior to the Seller GuarantorsClosing, the SellersParent may, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, directly or any of their Affiliates or Representatives receipt ofindirectly through its authorized representatives, (i) furnish information and access, to any Person making an Acquisition Proposal to Parent which was not solicited, initiated, knowingly encouraged or knowingly facilitated by Parent or any of its Subsidiaries, Affiliates or representatives and (ii) may participate in discussions and negotiate with such Person concerning any such unsolicited Acquisition Proposal, if and only to the extent all of the following conditions are met: (iiA) Buyer and Parent have not breached this Section 7.09(b) in any inquiryrespect with respect to such Acquisition Proposal, expression and (B) the Parent Board determines in good faith, after receipt of interestadvice from outside counsel and a financial advisor of nationally recognized reputation, proposal that such Acquisition Proposal constitutes or offer is reasonably likely to lead to a Superior Proposal (defined below).
(c) At any time prior to the Closing, and subject to Parent’s compliance at all times with the provisions of this Section 7.09, Parent may terminate this Agreement and enter into an agreement, understanding or arrangement providing for an Acquisition Proposal, if and only to the extent all of the following conditions are met: (A) the Acquisition Proposal has not been withdrawn, (B) the Parent Board determines in good faith, after receipt of advice from outside counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal, (C) the Parent Board determines in good faith, after receipt of advice from outside counsel, that the failure to take such action would be reasonably likely to result in a breach of fiduciary duties to the shareholders of Parent under applicable Law, and (D) only upon the concurrent payment of the applicable termination fee to the Company in accordance with Section 8.01(e).
(d) In addition to the obligations of Parent set forth in Section 7.09(a) and 7.09(b), Parent shall promptly (and in any event within 24 hours after receipt thereof) advise the Company orally and in writing of any Acquisition Proposal received by Parent or any inquiry with respect to or that would reasonably be expected to lead to an any 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) including the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice Proposal or request inquiry (except to the extent including any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialchanges thereto). During the Pre-Closing Period, Parent shall (i) keep the Company shall keep Acquiror fully reasonably informed of the status and details of, and (including any modification to, change to the terms thereof) of any such inquiry, expression of interest, proposal Acquisition Proposal or offer inquiry and any correspondence or communications related thereto and shall (ii) provide to Acquiror the Company as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to Parent or any of its Subsidiaries from any Person that describes any of the terms or conditions of any Acquisition Proposal.
(e) For purposes of this Agreement, “Superior Proposal” means any bona fide written Acquisition Proposal made by any Person to Parent, which, if consummated, would result in such Person (or its shareholders) owning, directly or indirectly, at least fifty (50%) of the shares of the Parent Common Stock then outstanding (or of the surviving entity in a truemerger or the direct or indirect parent of the surviving entity in a merger) or all or substantially all the assets of Parent, correct which the Parent Board determines in good faith, after receipt of advice from a financial advisor of nationally recognized reputation and complete copy outside counsel, to be (A) more favorable to the shareholders of Parent from a financial point of view than the Merger, assuming for this purpose that both the Acquisition Proposal and Merger would not be consummated and taking into account all the terms and conditions of such inquiryproposal, expression of interestthe Person making such proposal and this Agreement and (B) reasonably likely to be completed on the terms proposed, proposal or offer taking into account all financial, legal, regulatory 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 (except to the extent any other aspects of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Merger Agreement (Heckmann Corp)
Exclusive Dealing. A. For a period commencing on the date hereof and ending upon the sooner of either (ai) From and after the Agreement Date until completion of all the Closing or the earlier termination of transactions contemplated by this Agreement in accordance with Article 11 or (ii) the “Pre-Closing Period”)Termination Date, the Seller Guarantors, the Sellers, NewCo and the Company shall agrees that it will not, and shall it will cause it and its affiliates and their respective Affiliates directors, officers, affiliates, employees and Representatives other agents and representatives (including, without limitation, any investment banking, legal or accounting firm retained by it or any of them and any individual member or employee of the foregoing) (each, a "Representative") not to, unless otherwise ordered by the Court, (i) initiate, solicit or seek, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support any inquiries or induce the making, submission making or announcement implementation of any inquiry, expression of interest, proposal or offer that constituteswith respect to a liquidation, or would reasonably be expected similar transaction involving, or any purchase of all or any substantial portion of, the Securities (any such proposal or offer being hereinafter referred to lead toas a "Proposal"), an Acquisition Proposal, or (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardingconcerning, or deliver provide any confidential information or make available to any Person any non-public information with respect data to, or take have any other action regardingdiscussions with, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected person relating to lead to, an Acquisition a Proposal, (iii) agree tootherwise cooperate in any effort or attempt to make, accept, approve, endorse implement or recommend any Acquisition accept a Proposal, or (iv) enter into or consummate any letter of intent agreement or understanding with any other Contract contemplating or otherwise person relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The a Proposal.
B. Seller Guarantors and the Sellers shallhas terminated, and shall cause NewCo, the Company, their respective Affiliates its affiliates and each of its and their respective Representatives tohave also ceased and terminated, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any Persons parties conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition Proposal. If .
C. Seller shall notify Buyers immediately if any Representative inquiries, proposals or Affiliate of any Seller Guarantoroffers related to a Proposal are received by, any Seller confidential information or the Companydata is requested from, whether in his or her capacity as such any negotiations or in any other capacitydiscussions related to a Proposal are sought to be initiated or continued with, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to takeSeller, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, its affiliates or any of their Affiliates respective Representatives.
D. Seller represents and warrants that Buyers will not incur any liability by virtue of the execution of this Agreement or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression the completion of interest, proposal or offer that 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 for access transactions contemplated by this Agreement to any third party with whom Seller or its affiliates have had discussions concerning a sale of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Securities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Senesco Technologies Inc)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until the earlier of the Closing Date or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller GuarantorsParent shall not take, the Sellers, NewCo and or permit the Company shall not, and shall cause their or any of Parent's or the Company's respective Affiliates and or Representatives not toto take, directly or indirectlyany action to solicit, (i) solicitencourage, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support engage in or induce the making, submission continue discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected provide any information to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter agreement with, any Person (other than Buyer and/or its Affiliates and Representatives) concerning any purchase of intent the Company's equity securities or any merger, consolidation, liquidation, recapitalization, share exchange or other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, business combination involving the Company, their respective Affiliates any sale, lease, exchange or other disposition of all or substantially all of the assets of the Company or similar transaction involving the Company, other than sales of inventory in the ordinary course of business and assets sold in accordance with Section 6.1 (each of their respective Representatives tosuch transaction, promptly following the date hereof and during the Pre-Closing Periodan "Acquisition Transaction"); provided, immediately cease and cause to be terminated any and all existing activitieshowever, discussions or negotiations with any Persons conducted that Buyer hereby acknowledges that, prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller GuarantorAgreement, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo Parent and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 have provided information relating to the Company or and have afforded access to, and engaged in discussions with, other Persons in connection with a proposed Acquisition Transaction, and Buyer further acknowledges that such information, access and discussions could reasonably enable another Person to form a basis for access an Acquisition Transaction without any breach by Parent of this Section 6.11. Neither Parent (with respect to any of the properties, books or records of the Company by or any Person or Persons other than Acquiror that would reasonably be expected to lead to an proposed Acquisition Proposal. Such notice shall describe (1Transaction) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, nor the Company shall keep Acquiror fully informed of the status and details release any third party from, or waive any provision of, any confidentiality agreement to which it is a party and Parent and the Company also agree to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such person by or on behalf of Parent or the Company and, if requested by Buyer (and at Buyer's expense), to enforce such Person's obligation to do so. Parent and the Company agree that the rights and remedies for noncompliance with this Section 6.11 shall include having such provision specifically enforced by any modification tocourt having equity jurisdiction, it being acknowledged and agreed that any such inquiry, expression of interest, proposal breach or offer threatened breach shall cause irreparable injury to Buyer and any correspondence or communications related thereto and shall that money damages would not provide an adequate remedy to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Buyer.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until through the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo Company and the Company each Shareholder shall not, and shall cause their respective Affiliates and instruct its Representatives not to, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, : (i) knowingly solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce engage with respect to any inquiries or the making, submission or announcement making of any inquiry, expression proposal from a Person or group of interest, proposal or offer Persons other than Parent and its affiliates and Representatives that constitutesmay constitute, or would could reasonably be expected to lead to, an Acquisition Proposal, Alternative Transaction; (ii) enter into, into or participate in, maintain or continue in any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person or group of Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors than Parent and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo its affiliates and the Company shall promptly notify Acquiror in writing after their receipt ofRepresentatives regarding, or any of their Affiliates or Representatives receipt ofotherwise pursue, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, Alternative Transaction; (iii) furnish any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic non-public information relating to the Company or for any of its Subsidiaries or their respective assets or businesses, or afford access to any of the assets, business, properties, books or records of the Company by or any of its Subsidiaries to any Person or group of Persons other than Acquiror Parent and its affiliates and Representatives, in all cases for the purpose of assisting with or facilitating an Alternative Transaction; or (iv) enter into an Alternative Transaction or any Contract, including any letter of intent, term sheet or other similar document, relating to an Alternative Transaction. The Company shall cease all discussions and negotiations concerning an Alternative Transaction. During the period from the date of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall promptly advise Parent in writing of any proposed Alternative Transaction or any inquiry or proposal that would could reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms Alternative Transaction and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under keep Parent reasonably informed on a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed current basis of the status and details of, and any modification to, any of such inquiry, expression of interest, proposal or offer and inquiry.
(b) For purposes of this Section 7.10, an “Alternative Transaction” is any correspondence (i) direct or communications related thereto and shall provide indirect acquisition by any Person or group of Persons other than Parent or its affiliates of assets of the Company or any of its Subsidiaries (including any equity interests of any of its Subsidiaries) equal to Acquiror ten percent (10%) or more of the fair market value of the Company’s consolidated assets or to which ten percent (10%) or more of the Company’s net revenues or net income on a trueconsolidated basis are attributable, correct and complete copy (ii) direct or indirect acquisition by any Person or group of such inquiry, expression Persons other than Parent or its affiliates of interest, proposal any of the capital stock of the Company or offer and any amendments, correspondence and communications related thereto, if it is in writingof its Subsidiaries, or a reasonable written summary thereof(iii) merger, if it is not in writing (except to consolidation, other business combination or similar transaction involving the extent Company or any of such information is deemed confidential under a confidentiality its Subsidiaries pursuant to which any Person or non-disclosure agreement that is already in place as group of Persons other than Parent or its affiliates would own ten percent (10%) or more of the Agreement Dateconsolidated assets, in which case such notice will disclose net revenues or net income of the existence of such inquiryCompany and the Subsidiaries, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)taken as a whole.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ashland Global Holdings Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement pursuant to Section 8.1, none of Sellers shall take, nor shall any of them permit any of their Affiliates (including any of the Group Companies or Holding Companies) or Representatives to take, any action to solicit, knowingly encourage, initiate or engage in accordance discussions or negotiations with, or provide any information to or enter into any agreement with Article 11 any Person (other than Buyer and/or any of its Affiliates) concerning any purchase of any of the Group Companies’ or Holding Companies’ equity securities or any merger, sale of substantial assets or similar transaction involving any of the Group Companies or Holding Companies, other than assets sold in the ordinary course of business (each such acquisition transaction, an “Pre-Closing PeriodAcquisition Transaction”); provided, however, that Buyer hereby acknowledges that prior to the Seller Guarantorsdate of this Agreement, the Sellers, NewCo Sellers and the Company Group Companies 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 the Sellers or the Group Companies of this Section 6.16. Notwithstanding the foregoing, any Seller, any of its Affiliates or its or their respective Representatives may respond to any unsolicited proposal regarding an Acquisition Transaction by indicating that Sellers and the Group Companies are subject to an exclusivity agreement and are unable to provide any information related to the Group Companies or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Transaction so long as such exclusivity agreement remains in effect.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to Section 8.1, HYAC shall not, and shall cause its Affiliates and its and their respective Affiliates and Representatives not to, directly or indirectly, (i) take any action to solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce the making, submission engage in discussions or announcement of any inquiry, expression of interest, proposal or offer that constitutesnegotiations with, or would reasonably be expected provide any information to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any agreement (including any agreement in principle, letter of intent or definitive agreement) with any Person (other Contract contemplating than Sellers and/or any of their Affiliates) concerning the direct or indirect purchase, transfer, license or other acquisition of any equity securities, business or assets of or from any Person(s), whether by merger, purchase, consolidation, recapitalization or otherwise relating to (a “HYAC Acquisition Transaction”), or, except as required by applicable Law, make any Acquisition Proposal filing with the SEC (including the filing of any registration statement) or (v) submit any Acquisition Proposal other Governmental Entity with respect thereto, in each case, other than with respect to the vote transactions contemplated hereby. Notwithstanding the foregoing, HYAC, any of its Affiliates or any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof may respond to any unsolicited proposal regarding a HYAC Acquisition Transaction by indicating that HYAC is subject to an exclusivity agreement and during the Pre-Closing Period, immediately cease and cause is unable to be terminated provide any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement information with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, it or any of their its Affiliates or Representatives receipt of, (i) entertain any proposals or offers or engage in any negotiations or discussions concerning a HYAC Acquisition Proposal, (ii) any inquiry, expression Transaction so long as such exclusivity agreement remains in effect. Table of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).Contents
Appears in 1 contract
Samples: Business Combination Agreement (Haymaker Acquisition Corp.)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until to the earlier of the Closing or and the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and each of the Company and each Executory Seller shall not, and shall cause direct and not authorize or permit any of its Affiliates or any of its or their respective Affiliates and Representatives not representatives to, directly or indirectly, : (ia) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support encourage or induce continue discussions or engage in negotiations with any Person, other than Purchaser or its Affiliates, relating to the making, submission possible direct or announcement indirect acquisition of any inquiryEquity Interests or material assets of any Acquired Company (whether by way of merger, expression purchase of interestequity, proposal purchase of assets or offer that constitutes, or would reasonably be expected to lead to, otherwise) (an “Acquisition Proposal, Transaction”); (iib) enter into, participate in, maintain or continue any 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 or documentation with respect toto any Acquired Company to any Person, other than Purchaser, its Affiliates or their respective representatives, relating to an Acquisition Transaction, or take otherwise knowingly cooperate with any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected third-party relating to lead to, an Acquisition Proposal, Transaction; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (ivc) enter into any letter of intent or agreement in principle or any agreement (whether or not binding) with any Person, other Contract contemplating than Purchaser or otherwise relating its Affiliates with respect to an Acquisition Transaction. Notwithstanding the foregoing, the Company may inform any third party that it is restricted from participating in discussions regarding an Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company ShareholderTransaction. The Seller Guarantors and the Sellers Company shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives direct its representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately (i) cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement heretofore with respect to any offer or proposal that constitutes an Acquisition Proposal. If any Representative Transaction and (ii) use Commercially Reasonable Efforts to exercise contractual rights (if any) to cause the return or Affiliate destruction of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each confidential information of the Seller GuarantorsAcquired Companies shared with any such Persons in connection therewith. In the event that any Acquired Company receives any offer or proposal relating to an Acquisition Transaction from a third party, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions Purchaser of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except . Notwithstanding anything to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Periodcontrary herein, the Company shall keep Acquiror fully informed exercise of the status and details of, and any modification to, Options by any such inquiry, expression of interest, proposal Optionholder will in no event be deemed an Acquisition Transaction or offer and any correspondence or communications related thereto and shall provide otherwise be deemed to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)violate this Section 6.05.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (its terms, neither Newco nor the “Pre-Closing Period”)Company shall, the Seller Guarantors, the Sellers, NewCo and each of Newco and the Company shall notcause the other Group Companies, its controlled Affiliates and shall cause its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support directly or induce the makingindirectly, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) discuss or negotiate with any Person a Company Acquisition Proposal (other than to inform such Person of the restrictions set forth in this Section 5.6), (iv) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (v) take meaningful steps in preparation for, or conduct, a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); or (vi) otherwise cooperate in any way with, or knowingly assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify FEAC promptly upon receipt of any such inquiry, proposal, offer or Company Acquisition Proposal by any Group Company, and to provide copies of material documents, correspondence or other material received in respect of, from or on behalf of any such Person if in writing or electronic form, and if not in writing or electronic form, a description of the material terms and conditions of any such inquiry, proposal, offer or Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such inquiry, proposal, offer or Company Acquisition Proposal) and (B) keep FEAC reasonably informed on a current basis of any modifications to such inquiry, proposal, offer or Company Acquisition Proposal and shall provide to FEAC copies of all material correspondence if in writing or electronic form and if not in writing or electronic form, a description of the material terms of such correspondence or communication to the Company by or on behalf of any Person making such inquiry, proposal, offer or Company Acquisition Proposal. Notwithstanding anything to the contrary in this Section 5.6(a), this Agreement shall not prevent the Company or its board of directors from, prior to obtaining the Company Required Approval in respect of the Company Arrangement Resolution, disclosing to Company Shareholders the receipt, existence or terms of a bona fide Company Acquisition Proposal received after the date hereof that did not result from a material breach of this Section 5.6(a).
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, FEAC shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a FEAC Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a FEAC Acquisition Proposal, ; (iii) agree to, accept, approve, endorse discuss or recommend negotiate with any Person a FEAC Acquisition ProposalProposal (other than to inform such Person of the restrictions set forth in this Section 5.6), (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or otherwise relating to any understanding regarding a FEAC Acquisition Proposal or Proposal; (v) submit take meaningful steps in preparation for, or conduct, an offering of any securities of FEAC (or any Affiliate or successor of FEAC); or (vi) otherwise cooperate in any way with, or knowingly assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. FEAC agrees to (A) notify the Company promptly upon receipt of any such inquiry, proposal, offer or FEAC Acquisition Proposal by FEAC, and to provide copies of material documents, correspondence or other material received in respect of, from or on behalf of any such Person if in writing or electronic form, and if not in writing or electronic form, a description of the material terms and conditions of any such inquiry, proposal, offer or FEAC Acquisition Proposal in reasonable detail (including the identity of any person or entity making such inquiry, proposal, offer or FEAC Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such inquiry, proposal, offer or FEAC Acquisition Proposal and shall provide to the vote Company copies of all material correspondence if in writing or electronic form and if not in writing or electronic form, a description of the material terms of such correspondence or communication to FEAC by or on behalf of any Company Shareholder. The Seller Guarantors and the Sellers shallPerson making such inquiry, and shall cause NewCoproposal, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions offer or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any FEAC Acquisition Proposal. If Notwithstanding any Representative other provision to the contrary contained in this Agreement, none of the provisions of this Section 5.6(b) (including without limitation any of the foregoing regarding exclusivity) shall in any way apply to or limit the activities of any non-controlled Affiliate of any Seller GuarantorFEAC, including Forbion Group Holding B.V., any Seller investment funds or entities owned, controlled or managed by Forbion Group Holding B.V. and the direct or indirect portfolio companies thereof (each, a “FEAC Non-Controlled Affiliate”), but only if Confidential Information (as defined in the Confidentiality Agreement) of the Company has not been, and is not, made available to any such FEAC Non-Controlled Affiliate. Should any individual who is employed by a FEAC Non-Controlled Affiliate and who is not employed by FEAC or the Company, whether Sponsor receive Confidential Information (as defined in the Confidentiality Agreement) of the Company in his or her capacity as a director, officer or other representative of FEAC, such individual will be bound by the terms of this Agreement applicable to FEAC, but the activities of such FEAC Non-Controlled Affiliate may continue without limitation as set forth herein and this Agreement shall not apply to such FEAC Non-Controlled Affiliate so long as such FEAC Non-Controlled Affiliate does not disclose or use any such Confidential Information (as defined in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause Confidentiality Agreement) in connection with such Representative or Affiliate activities and is not otherwise directed to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1or refrain from taking such actions, by such individuals.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Samples: Business Combination Agreement (Forbion European Acquisition Corp.)
Exclusive Dealing. (a) From and after During the Agreement Date until period from the date hereof through the Closing or the earlier termination of this Agreement in accordance with Article 11 (Agreement, neither Crackle, CPE, nor any Affiliate thereof, nor any director, officer, manager, equity holder or employee of the “Pre-Closing Period”)foregoing, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly take any action to encourage, knowingly facilitate, support initiate or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, engage in discussions or negotiations with any Persons conducted prior to Person, nor shall any of the foregoing make, consider or on accept any offer (other than from CSSE and its Affiliates and Representatives), concerning any sale, license, pledge or transfer of the date Crackle Contributed Assets, the Crackle VOD Business or Crackle (other than assets sold in the ordinary course of business), including, without limitation, by way of merger, purchase of stock, purchase of assets, tender offer or consolidation. Notwithstanding the foregoing, the parties acknowledge and agree that nothing in this Agreement with respect to Section 5.7(a) shall in any Acquisition Proposal. If way limit the right of CPE, or any Representative or Affiliate of CPE (other than Crackle), or any Seller Guarantordivision of CPE or any Affiliate of CPE (other than Crackle), from pursuing any Seller merger, consolidation, license, pledge, or sale of all or a substantial portion of its assets or equity, or any similar transaction, whether or not such proposed transaction would result indirectly in the sale and transfer in such transaction of the Crackle VOD Business or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Crackle Contributed Assets.
(b) During the Pre-period from the date hereof through the Closing Periodor the earlier termination of this Agreement, each neither CSSE or any Affiliate thereof, nor any director, officer, manager, equity holder or employee of the Seller Guarantorsforegoing, shall take any action to encourage, initiate or engage in discussions or negotiations with any Person, nor shall any of the foregoing make, consider or accept any offer (other than from CPE and its Affiliates and Representatives), concerning any sale, license, pledge or transfer of the CSSE Contributed Assets or the CSSE VOD Business (other than assets sold in the ordinary course of business), including, without limitation, by way of merger, purchase of stock, purchase of assets, tender offer or consolidation. Notwithstanding the foregoing, the Sellersparties acknowledge and agree that nothing in this Section 5.7(b) shall in any way limit the right of CSSE or any Affiliate of CSSE from pursuing any merger, NewCo and consolidation, license, pledge, or sale of all or a substantial portion of its assets (other than a direct sale by CSSE of the Company shall promptly notify Acquiror in writing after their receipt ofCSSE Contributed Assets) or equity, or any of their Affiliates similar transaction, whether or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that not such proposed transaction 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 result indirectly in the Company or for access to any sale and transfer in such transaction of the properties, books CSSE VOD Business or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)CSSE Contributed Assets.
Appears in 1 contract
Samples: Contribution Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Exclusivity Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective not authorize or permit any of its Affiliates and Representatives not or any officer, director, agent or employee of, or any investment banker, financial advisor, attorney, accountant or other representatives retained by Seller or any Affiliate of Seller ("Seller Representatives"), to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support seek or induce encourage (including by way of furnishing information or assistance) or take other material action to facilitate any inquiries or the making, submission or announcement making of any inquiry, expression of interest, proposal which constitutes or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition ProposalProposal (as defined below) from any person other than Buyer (a "Third Party"), (ii) enter into, participate in, maintain or continue engage in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, relating thereto or deliver in furtherance thereof 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 accept any Acquisition Proposal, and Seller shall promptly (ivbut in any event within one day thereafter) enter into any letter notify Buyer orally (which notice shall promptly be confirmed in writing) of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote inquiry with respect thereto which Seller or any of its Affiliates or any Seller Representative may receive and shall provide a copy of any Company Shareholder. The written materials provided to Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations in connection with any Persons conducted prior to or on the date of this Agreement with respect to any such Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing PeriodAs used in this Agreement "Acquisition Proposal" shall mean any proposal or offer, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, other than a proposal or offer (1) by Buyer or any of their its Affiliates or Representatives receipt of(2) with respect to any Retained Companies, for (i) any Acquisition Proposalmerger, consolidation, share exchange, business combination or other similar transaction (including reinsurance) with Seller or any of its Subsidiaries, (ii) any inquirysale, expression lease, exchange, mortgage, pledge, transfer or other disposition of interest10% or more of the assets or policies (including through reinsurance) of Seller or any of its Subsidiaries, proposal in a single transaction or offer that would reasonably be expected to lead to an Acquisition Proposalseries of transactions (whether related or unrelated), (iii) any other notice that tender offer or exchange offer for 20% or more of the outstanding shares of Seller's common stock or any Person is considering making an Acquisition Proposal class of Seller's debt securities or the filing of a registration statement under the Securities Act in connection therewith, (iv) the acquisition by any request for nonpublic information relating Third Party of beneficial ownership or a right to acquire beneficial ownership of, or the Company formation of any "group" (as defined under Section 13(d)(3) of the Exchange Act) which beneficially owns or for access has the right to acquire beneficial ownership of, 20% or more of the then outstanding shares of any class of Seller common stock or any class of Seller's debt securities or (v) any public announcement of a proposal, plan or intention to do any of the properties, books foregoing or records any agreement to engage in any of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)foregoing.
Appears in 1 contract
Samples: Purchase Agreement (Ich Corp /De/)
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify BHAC promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep BHAC reasonably informed on a current basis of any modifications to such offer or information.
(b) During the Interim Period, BHAC shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a BHAC Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a BHAC Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a BHAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of BHAC (or any other Contract contemplating Affiliate or otherwise relating to any Acquisition Proposal successor of BHAC); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)foregoing.
Appears in 1 contract
Samples: Business Combination Agreement (Focus Impact BH3 Acquisition Co)
Exclusive Dealing. (a) From and after During the Agreement Date until period from the Closing or the earlier termination date of this Agreement in accordance with to the earlier of (i) the Closing Date, (ii) the date this Agreement is terminated pursuant to Article 11 10, or (the “Pre-Closing Period”)iii) September 30, the 2005, every Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives agrees not to take any action to, directly or indirectlyindirectly (including through their advisors), (i) solicitencourage submissions, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support solicit or induce engage in discussions or negotiations with any Person relating to any acquisition or purchase of all or a material portion of the making, submission Assets or announcement the Business of Sellers in any inquiry, expression form or any equity interest in any of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as the Sellers to the existence extent it would impair the closing of these provisions) or the transactions contemplated hereunder. Sellers shall not participate in any negotiations regarding, or deliver or make available furnish to any other Person any non-public information with respect to, or take otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other action regarding, Person to do or seek any inquiry, expression of interest, the foregoing. Sellers shall promptly notify Buyer if any such proposal or offer that constitutesoffer, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse any inquiry 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 (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations contract with any Persons conducted prior to or on the date of this Agreement Person with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantorthereto, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1is made.
(b) During the Pre-Closing Period, each period from the date of this Agreement to the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any earlier of their Affiliates or Representatives receipt of, (i) any Acquisition Proposalthe Closing Date, (ii) any inquirythe date this Agreement is terminated pursuant to Article 10, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) September 30, 2005, Buyer agrees not to take any action to, directly or indirectly (including through their advisors), encourage submissions, initiate, solicit or engage in discussions or negotiations with any Person relating to any acquisition or purchase of all or a material portion of its assets or Business of Buyer in any form or any equity interest in Buyer or any of its subsidiaries to the extent it would impair the closing of the transactions contemplated hereunder and under the Equity Financing Transaction. Neither Buyer nor any of its subsidiaries shall participate in any negotiations regarding, or furnish to any other notice that Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating to the Company or for access to seek any of the propertiesforegoing. Buyer shall promptly notify Seller if any such proposal or offer, books or records of the Company by any inquiry or contract with any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related with respect thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)made.
Appears in 1 contract
Exclusive Dealing. The Company will not (a) From and after solicit acquisition or ----------------- investment proposals relating to the Agreement Date until the Closing assets or the earlier termination stock of the Company or any of the Subsidiaries from any outside sources; (b) entertain or discuss any acquisition or investment proposals relating to the assets or the stock of the Company or any of the Subsidiaries from any unsolicited outside sources, or (c) disclose (other than in the ordinary course of business, or to its attorneys, accountants or investment advisors) to any outside sources any non-published information concerning the Company or the Subsidiaries, or their business and/or financial condition, other than to the Buyers; provided, however, that the Company may make any public disclosure it believes in good faith is required by law or regulation (in which case the Company will advise and give the Buyers an opportunity to review and comment prior to making the disclosure). Notwithstanding anything contained herein to the contrary, in the event that the Company is in receipt of a Superior Proposal (as hereinafter defined) and the Board of Directors of the Company determines, in consultation with legal counsel, that the failure to take action with respect to such Superior Proposal would constitute a breach by the Board of Directors of the Company of their fiduciary duties under applicable laws, including their duties under Section 141 of the Delaware General Corporation Law, then the Company's Board of Directors shall be free, without encumbrance under this Agreement Agreement, to entertain or discuss any acquisition or investment proposals relating to the assets or the stock of the Company or any of the Subsidiaries and to terminate this Agreement. As used in this Section 6.06, the term "Superior Proposal" shall mean a bona fide written proposal from a third party for a competing transaction, which the Company's Board of Directors and/or financial advisor determines is reasonably capable of being financed, on terms which the Board of Directors of the Company reasonably determines to be more favorable than the issuance of the Shares to the Buyer, in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as having regard to the existence interests 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1's stockholders.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause not authorize or permit any of its Subsidiaries or any of their respective Affiliates and Representatives not to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support facilitate or knowingly induce the makingmaking of, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 Proposal, (v) submit any Acquisition Proposal to the vote of any Company ShareholderStockholders or (vi) enter into any other transaction or series of transactions not in the Ordinary Course of Business consistent with past practice, the consummation of which would impede, interfere with, prevent or delay, or would reasonably be expected to impede, interfere with, prevent or delay, the consummation of the Merger. The Seller Guarantors and the Sellers Company shall, and shall cause NewCo, the Company, their respective Affiliates its Subsidiaries and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, (A) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement hereof with respect to any Acquisition Proposal and (B) immediately terminate access of any Person (other than the Parent, the Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company in connection with an Acquisition Proposal and request from each Person (other than the Parent, the Merger Sub and their Representatives) the prompt return or destruction of all non-public information with respect to the Company previously provided to such Person in connection with an Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the CompanyRepresentative, whether in his his, her or her its capacity as such or in any other capacity, takes any action that the Seller Guarantors Company or the Sellers are a Company Stockholder is obligated pursuant to this Section 6.1 5.04 not to cause authorize or permit such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers Company shall be deemed for all purposes of this Agreement to have breached this Section 6.15.04.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the The Company shall promptly (but in any event, within twenty-four (24) hours) notify Acquiror the Parent in writing after their receipt ofby it (or, or after it gains knowledge of such receipt by any of their Affiliates or Representatives receipt ofits Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal, (iii) any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic non-public information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror the Parent, the Merger Sub and their Representatives that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)request. During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).33
Appears in 1 contract
Samples: Merger Agreement (Neogenomics Inc)
Exclusive Dealing. (a) From and after During the period from the date of this Agreement Date until through the Closing earlier of the Effective Time or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause not authorize, direct or permit any Seller or any of their respective Affiliates and Representatives not Affiliates, officers, directors, employees, representatives, consultants, financial advisors, attorneys, accountants or other agents or representatives (“Company Representatives”), to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support initiate or induce encourage the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Alternative Proposal, ; (ii) enter into, participate in, maintain in or continue any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regarding, or deliver or make available furnish to any Person any non-public information with respect to, or take any other action regarding, to knowingly facilitate any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition any Alternative Proposal, ; or (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any agreement, letter of intent intent, agreement in principal, merger agreement, share or any asset acquisition agreement, exchange agreement, option agreement or similar agreement with respect to an Alternative Proposal, or consummate the transactions contemplated by an Alternative Proposal. The Company shall immediately cease all discussions, negotiations and other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal activities described in the immediately preceding sentence to the vote of extent they are occurring or have occurred on or prior to the date hereof. Any violation by any Company ShareholderRepresentative of the restrictions listed in this Section 7.5 shall be deemed a breach by the Company of this Section 7.5. The Seller Guarantors term “Alternative Proposal” means any proposal, transaction or offer by a Person (other than Parent and the Sellers shallMerger Sub): (a) for any merger, and shall cause NewCoconsolidation, share exchange, business combination, joint venture, liquidation, dissolution, recapitalization, reorganization or other similar transaction directly or indirectly involving the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions its subsidiaries or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated its equity holders pursuant to this Section 6.1 to cause which the equity holders of the Company immediately preceding such Representative transaction hold less than 85% of the aggregate equity interests in the surviving or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes resulting entity of this Agreement to have breached this Section 6.1.
such transaction or any direct or indirect parent thereof; (b) During the Pre-Closing Period, each for any initial public offering or private placement of securities of the Seller GuarantorsCompany (or any roadshows therefor or the filing, the Sellersconfidential submission or distribution of a registration statement, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofprospectus or other offering document therefor), or any for the acquisition, issuance, sale or exchange (including without limitation by tender or exchange offer) of their Affiliates equity interests or Representatives receipt of, securities (ix) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 from the Company or its equity holders representing in excess of 5% of the voting power of the then outstanding shares of Capital Stock or (y) of the Company’s subsidiaries; (c) for access to the acquisition or exchange of any material assets of the Company or its Subsidiaries (other than any such transactions in the ordinary course of the Company’s business consistent with past practice, but which in any event do not exceed 10% of the Company’s consolidated assets or revenues, individually or in the aggregate); (d) for the sale, lease, exchange, exclusive license, mortgage, pledge or transfer (including through any arrangement having substantially the same economic effect as a sale of assets) of any material assets of the Company or its subsidiaries (other than any such transactions in the ordinary course of the Company’s business consistent with past practice, but which in any event do not exceed 10% of the Company’s consolidated assets or revenues, individually or in the aggregate); or (e) for any transaction similar to, or having a similar effect as, any of the propertiestransactions described in the foregoing clauses (a), books (b), (c) or records (d); and in any of the preceding clauses, in one transaction or in a series of transactions. The Company by shall notify Parent promptly in writing if any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice inquiry or request and (2) the identity of the other contact with or by any Person or Group making any such Acquisition with respect to an Alternative Proposal, inquiry, expression is made. Any such notice to Parent shall indicate in reasonable detail the conditions of interest, such proposal, offer, notice inquiry or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)other contact.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date period from the date hereof until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company Sellers shall not, and shall cause the Company Group (and shall direct the Joint Venture Entities) and its and their respective Affiliates and Representatives not to, directly or indirectlyindirectly (w) execute any written agreement to enter into a Competing Transaction, (ix) solicit, initiate, seek, entertain, enter into or participate in any negotiations or discussions with any potential third-party acquirer (other than Purchaser) that would be reasonably expected to result in a Competing Transaction; (y) knowingly encourage, knowingly facilitate, support initiate or induce the making, submission or announcement of solicit (i) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition ProposalCompeting Transaction, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regardinginquiries regarding any Competing Transaction, or deliver (iii) any proposals or make available to offers for any Person any Competing Transaction; or (z) provide confidential non-public information to any potential third-party acquirer (other than Purchaser) to facilitate a Competing Transaction or afford access to the Business, Vessels or, except as required by Law, the books or records of the Acquired Entities thereto in connection with respect a Competing Transaction; provided that Purchaser hereby acknowledges that prior to the date hereof, Sellers and their Affiliates have provided information relating to the Company Group and has afforded access to, or take and engaged in discussions with, other Persons in connection with a Competing Transaction and that such information, access and discussions could reasonably enable another Person to form a basis for a Competing Transaction without any other action regarding, any inquiry, expression breach by Sellers of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposalthis Section 5.11. Notwithstanding the foregoing, (iii1) 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 (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates Company Group (and each of their direct the Joint Venture Entities) and Sellers’ and the Company Group’s (and direct the Joint Venture Entities’) respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, : (A) immediately cease and cause to be terminated terminate any and all existing activitiessolicitation, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement Person that may be ongoing with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition ProposalCompeting Transaction; and (B) promptly request that such Person promptly return or destroy all non-public, (iii) any other notice confidential or proprietary information furnished to such Person regarding the Acquired Entities by or on behalf of Sellers or the Acquired Entities that any such Person is considering making an Acquisition Proposal received in connection with discussions or (iv) any request for nonpublic information relating negotiations regarding a potential or contemplated transaction similar to the Company or for access to any of the propertiestransaction contemplated hereby, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making Sellers may respond to any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under unsolicited proposal regarding a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential).Competing Transaction by indicating
Appears in 1 contract
Samples: Equity Purchase and Contribution Agreement (New Fortress Energy Inc.)
Exclusive Dealing. (a) From and after Except as permitted by this Section 5.5, during the Agreement Date until period from the Closing or the earlier termination date of this Agreement until the earlier of (i) the date this Agreement is terminated in accordance with Article 11 its terms and (ii) the “Pre-Closing Period”)Date, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause direct its Affiliates and its and their respective Affiliates and Representatives not to refrain from taking any action to, directly or indirectly, (i) solicitknowingly encourage, initiate, seeksolicit or engage in negotiations with, entertainor provide any confidential information to, knowingly encourageany Person, knowingly facilitateother than Parent or Merger Sub (and their Affiliates and Representatives), support or induce the making, submission or announcement concerning any purchase of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter of intent capital stock or any other Contract contemplating material asset of the Company or otherwise relating to any Acquisition Proposal of the Company Subsidiaries or any merger, recapitalization or similar transaction involving the Company or any of the Company Subsidiaries.
(vb) submit any Acquisition Proposal to Immediately following the vote execution of any this Agreement, the Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCoeach of the Company Subsidiaries, the Company, their respective Affiliates and shall direct each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated terminate any and all existing activities, discussions or negotiations with any Persons conducted Persons, other than Parent or Merger Sub (and their respective Affiliates and Representatives), concerning any purchase of any capital stock or any material asset of the Company or any of the Company Subsidiaries or any merger, recapitalization or similar transaction involving the Company or any of the Company Subsidiaries. The Company shall (i) promptly request each Person that has executed a confidentiality agreement with the Company prior to or on the date of this Agreement in connection with respect a process relating to any Acquisition Proposal. If any Representative bona fide proposal to acquire the assets or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each equity of the Seller Guarantors, the Sellers, NewCo Company and the Company shall promptly notify Acquiror in writing after their receipt ofSubsidiaries (including by means of any merger, consolidation, business combination, stock acquisition, asset acquisition, recapitalization, liquidation or similar transaction involving the Company) to return or destroy all confidential information heretofore furnished to such Person or its Representatives by or on behalf of the Company or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposalits Subsidiaries, (ii) not amend or waive, and shall enforce, the provisions of each such confidentiality agreement, except that, without limiting any inquiryother provision of this Agreement, expression this clause (ii) shall not apply to any standstill provision contained therein to the extent compliance herewith would be inconsistent with the fiduciary duties of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, the Company Board under applicable Law and (iii) prohibit any other notice that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any such Person or its Representatives to any physical or electronic data room of the propertiesCompany, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)permitted herein.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates and its Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify SLAM promptly (and in any event within two Business Days after receipt) of any Company Acquisition Proposal by the Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal unless disclosure of the identity of such Persons would violate any confidentiality agreement in effect on the date of this Agreement) and (B) keep SLAM reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, SLAM shall not, and shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing non-public information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SLAM Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a SLAM Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any understanding regarding a SLAM Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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) otherwise cooperate in any request for nonpublic information relating way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the Company do or for access seek to do any of the properties, books or records of foregoing. SLAM agrees to (A) notify the Company promptly (and in any event within two Business Days after receipt) of any SLAM Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected SLAM, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such SLAM Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of any person or entity making such SLAM Acquisition Proposal unless disclosure of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any identity of such information is deemed confidential under a Persons would violate any confidentiality or non-disclosure agreement that is already in place as effect on the date of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request this Agreement) and any of such information contained therein that is non-confidential). During the Pre-Closing Period, (B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates its Representatives and Representatives the Group Companies not to, directly or indirectly, : (i) solicitaccept, initiate, seekrespond to, encourage, entertain, knowingly encouragesolicit, knowingly facilitatenegotiate, support provide information with respect to or induce discuss other offers for the makingdirect or indirect sale, submission merger, transfer, IPO, debt or announcement equity refinancing or recapitalization of the Company or any inquiry, expression or all of interest, proposal or offer that constitutesits Subsidiaries, or any of securities, business, properties or assets of the Company or any or all of its Subsidiaries, or other offers that would require the Company to abandon the transactions contemplated hereby (each such transaction prohibited by this sentence, an “Acquisition Proposal”, provided that, for the avoidance of doubt, neither this Agreement, nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 any Acquisition Proposal, (iv) enter into any letter Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company (or any other Contract contemplating successor to or otherwise relating to parent company of any Acquisition Proposal Group Company); or (v) submit otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(a) or further an Acquisition Proposal. Notwithstanding the foregoing, subject to Section 5.1, nothing in this Section 5.8(a) shall prohibit or restrict the Company from (x) raising bridge financing in the form of equity securities, convertible debt or SAFE Agreements of the Company or (y) consummating the Hyros Acquisition. The Company agrees to (A) notify 7GC promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any Acquisition Proposal of it, any other Group Company or any other Person of which they are aware, and to describe the vote terms and conditions of any Company Shareholder. The Seller Guarantors such Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep 7GC reasonably informed on a current basis of any material modifications to such offer or information and the Sellers shall, (C) not (and shall cause NewCo, the Company, their respective Affiliates its Subsidiaries and each of their respective Representatives not to) conduct any further discussions with, provide any information to, promptly following the date hereof and during the Pre-Closing Period, or enter into negotiations with such Persons. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement (other than 7GC and its Representatives) that may be ongoing with respect to an Acquisition Proposal and terminate any such Person’s and such Person’s Representative’s access to any electronic data room. The Company shall not release any third party from, or waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal in any agreement to which it or any Pre-Closing Holder is a party, and shall promptly following the date hereof send a written request (email being sufficient) to any Person to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with an Acquisition Proposal. If any Representative , which written request shall instruct such Person to return or Affiliate confirm (in writing) destruction of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as all such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1confidential information.
(b) During the Pre-Closing Period, the 7GC Parties shall not, and each of the Seller Guarantorsthem shall cause their Representatives not to, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, directly or any of their Affiliates or Representatives receipt of, indirectly: (i) accept, initiate, respond to, encourage, entertain, solicit, negotiate, provide information with respect to or discuss other offers from any Acquisition Proposal, (ii) Person or group of Persons other than any inquiry, expression of interest, proposal or offer the Group Companies or Hyros that would may constitute or could reasonably be expected to lead to an Acquisition Proposala 7GC Competing Transaction; (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Person other than any or the Group Companies or Hyros regarding a 7GC Competing Transaction, (iii) furnish or disclose any other notice that non-public information to any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror any or the Group Companies or Hyros in connection with, or that would could reasonably be expected to lead to, a 7GC Competing Transaction; (iv) enter into any Contract regarding a 7GC Competing Transaction; (v) approve, endorse or recommend any 7GC Competing Transaction; (vi) enter into a 7GC Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a 7GC Competing Transaction or publicly announce an intention to do so; or (vii) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing or seek to circumvent this Section 5.8(b) or further an Acquisition Proposal. Such notice shall 7GC agrees to (A) notify the Company promptly upon receipt (and in any event within forty-eight (48) hours after receipt) of any 7GC Competing Transaction of which it is aware, and to describe (1) the material terms and conditions of any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and 7GC Competing Transaction in reasonable detail (2) including the identity of the Person Persons making such 7GC Competing Transaction unless otherwise restricted by confidentiality obligations), (B) keep the Company reasonably informed on a current basis of any material modifications to such offer or information and (C) not (and shall cause its Subsidiaries and their respective Representatives not to) conduct any further discussions with, provide any information to, or enter into negotiations with such Persons. 7GC shall immediately cease and cause to be terminated any discussions or negotiations with any Persons (other than any of the Group making Companies or Hyros and their Representatives) that may be ongoing with respect to a 7GC Competing Transaction and terminate any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or Person’s and such Person’s Representative’s access to any electronic data room. 7GC shall promptly following the date hereof send a written request (except email being sufficient) to any Person to whom 7GC or any of its Representatives provided confidential information of a 7GC or the Sponsor in connection with a 7GC Competing Transaction, which written request shall instruct such Person to return or confirm (in writing) destruction of all such confidential information. For purposes of this Agreement, “7GC Competing Transaction” shall mean a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination other than with respect to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, transactions with the Company shall keep Acquiror fully informed of contemplated by this Agreement and the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Ancillary Documents.
Appears in 1 contract
Exclusive Dealing. (a) From and after During the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Interim Period”), the Seller Guarantors, the Sellers, NewCo and the Company shall notnot take, and shall cause their respective Affiliates and not authorize, encourage, permit or instruct any of its Representatives not toto take, directly or indirectly, any action to: (ia) solicit, initiate, seek, entertain, initiate or knowingly encourage, knowingly facilitate, support or induce encourage the making, submission or announcement of any inquiryAcquisition Proposal from any Person (other than Buyer or its Representatives); (b) knowingly encourage, expression of interestinitiate, proposal participate in or offer that constitutesengage in any discussions, negotiations or would reasonably be expected to lead to, other communications regarding an Acquisition Proposal; (c) execute, (ii) enter into, participate in, maintain into or continue become bound by any communications (except solely to provide written notice as to the existence letter of these provisions) intent or negotiations regarding, or deliver or make available to other Contract with any Person (other than Buyer or its Representatives) relating to or in connection with an Acquisition Proposal; (d) provide any non-public information with respect to, to any Person (other than Buyer or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected its Representatives) in response to lead to, an Acquisition Proposal, ; or (iiie) agree to, accept, approve, endorse entertain or recommend any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to accept any Acquisition Proposal from, cooperate in any way with, or facilitate or encourage any effort or attempt by any Person (vother than Buyer or its Representatives) submit any relating to an Acquisition Proposal to the vote of any Company ShareholderProposal. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective instruct its Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any Persons Person conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition Proposal. If Within two (2) Business Days following the date hereof, Seller shall, or shall cause its Representatives to, instruct any Representative such Person to return or Affiliate destroy all nonpublic information provided to such Person in connection with such Person’s consideration of any Acquisition Proposal in accordance with the confidentiality agreements entered into between Seller Guarantor, and any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Person.
(b) During Subject to Section 5.5(d) and Section 5.5(f) neither the PreSeller Board, nor any committee thereof, shall withdraw, modify or qualify (or propose to withdraw, modify or qualify) the recommendation in favor of the sale of the Transferred Assets to Buyer in any manner adverse to Buyer, or take any action or make any statement in connection with the Seller's Stockholder Meeting inconsistent with such recommendation.
(c) Seller shall promptly (and in any event within twenty-Closing four (24) hours of receipt thereof) notify Buyer orally and in writing of any Acquisition Proposal that is received by Seller during the Interim Period, each of the Seller Guarantors, the Sellers, NewCo and the Company which notice shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, include: (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person making or Group making any submitting such Acquisition Proposalindication of interest, inquiry, expression of interest, proposal, offer, notice offer or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details ofrequest, and any modification to, any such inquiry, expression of interest, proposal or offer the terms and any correspondence or communications related thereto conditions thereof; and shall provide to Acquiror a true, correct (ii) an accurate and complete copy of all written materials provided in connection with such inquiryAcquisition Proposal.
(d) Notwithstanding the provisions of Section 5.5(a) or 5.5(b), expression prior to the receipt of interestSeller Stockholder Approval, proposal or offer Seller may, in response to an unsolicited, bona fide written Acquisition Proposal from a Person (the “Potential Acquiror”) which (i) the Seller Board determines in good faith, after consultation with its financial advisor and its outside legal counsel, constitutes a Superior Proposal (and continues to constitute a Superior Proposal after taking into account any amendments, correspondence and communications related thereto, if it is in writingmodifications proposed by Buyer during any seven (7) Business Day period referenced below), or (ii) proposes greater value to Seller in financial terms and the Seller Board in good faith concludes that such Acquisition Proposal could reasonably be expected to result in a reasonable written summary thereofSuperior Proposal, take the following actions (but only if it is not in writing (except and to the extent that the Seller Board concludes in good faith, following consultation with its outside legal counsel, that such actions are necessary in order to comply with its fiduciary obligations under applicable Law); provided, that Seller has first given Buyer written notice (including a copy of such Acquisition Proposal) that states that Seller has received such Acquisition Proposal and otherwise includes the information required by Section 5.5(c) (the “Superior Proposal Notice”):
(i) furnish nonpublic information to the Potential Acquiror and may enter into discussion or negotiate with the Potential Acquiror; provided, that, (A) contemporaneously with furnishing any such nonpublic information to the Potential Acquiror, Seller gives Buyer written notice of its intention to furnish nonpublic information and (2) Seller receives from the Potential Acquiror an executed confidentiality agreement (in each case, the “Competing Confidentiality Agreement”) containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to the Potential Acquiror on its behalf, the material terms of which are no less favorable to the other party than the terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to the Potential Acquiror, Seller furnishes such nonpublic information to Buyer (to the extent such nonpublic information has not previously been provided to Buyer); and
(ii) engage in negotiations with the Potential Acquiror with respect to the Acquisition Proposal.
(e) For a period of not less than seven (7) Business Days after Buyer's receipt of each Superior Proposal Notice, Seller shall, if requested by Buyer, negotiate in good faith with Buyer to amend this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal (a “Former Superior Proposal”); provided that in the event the Acquisition Proposal as originally received by Seller indicates that the indicated transaction value is subject to the Potential Acquiror's review of nonpublic information to be provided by Seller as contemplated by Section 5.5(d)(1), such seven (7) Business Day negotiation period with Buyer shall not commence until the Potential Acquiror has provided a definitive proposed purchase price following its review of such nonpublic information. Upon such amendment of this Agreement, the terms and conditions of this Section 5.5 shall again apply to any inquiry or proposal made by any Person who withdraws a Superior Proposal or who made a Former Superior Proposal (after withdrawal or after such time as their proposal is a Former Superior Proposal).
(f) In response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after Seller’s compliance with Sections 5.5(c), (d) and (e), the Seller Board may withhold or withdraw the Seller Board Recommendation and, in the case of a Superior Proposal that is a tender or exchange offer made directly to Parent's stockholders, may recommend that its stockholders accept the tender or exchange offer (any of such information is deemed confidential under the foregoing actions, whether by the board of directors of Seller or a confidentiality or non-disclosure agreement that is already in place as committee thereof, a “Change of Recommendation”), if both of the Agreement Datefollowing conditions are met:
(i) the Seller Stockholder Approval shall not have been obtained; and
(ii) the Seller Board has concluded in good faith, following consultation with its outside legal counsel, that, in which case such notice will disclose the existence light of such inquirySuperior Proposal, offerthat such action is necessary in order to comply with its fiduciary obligations under applicable Law.
(g) Nothing contained in this Agreement shall prohibit Seller from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Securities Exchange Act of 1934, proposal, indication of interest or request and any of such information contained therein that is non-confidential)as amended.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms and conditions, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause their respective Affiliates its Representatives and Representatives Subsidiaries not to, directly or indirectly, : (i) solicitaccept, initiate, seekrespond to, encourage, entertain, knowingly encouragesolicit, knowingly facilitatenegotiate, support provide information with respect to or induce discuss other offers for the makingdirect or indirect sale, submission merger, transfer, IPO, debt or announcement equity refinancing or recapitalization of the Company or any inquiry, expression or all of interest, proposal or offer that constitutesits Subsidiaries, or any of the securities, business, properties or assets of the Company or any or all of its Subsidiaries, or other offers that would require the Company to abandon the transactions contemplated hereby (each such transaction prohibited by this sentence, an “Acquisition Proposal,” provided that, for the avoidance of doubt, none of the Pre-Closing Financing (if any), this Agreement nor any of the Ancillary Documents or any of the transactions contemplated hereby or thereby shall constitute an “Acquisition Proposal” for the purposes of this Section 5.8(a) or otherwise); (ii) furnish or disclose any non-public information to any Person in connection with, or that would reasonably be expected to lead to, an Acquisition Proposal, ; (iiiii) enter intointo any Contract regarding an Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of any Equity Securities of any Group Company (or any successor to or parent company of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, maintain or continue facilitate or encourage any communications (except solely effort or attempt by any Person to provide written notice as do or seek to do any of the existence of these provisionsforegoing or seek to circumvent this Section 5.8(a) or negotiations regarding, or deliver or make available further an Acquisition Proposal. The Company agrees to (A) notify Rotor promptly upon receipt (and in any Person event within forty-eight (48) hours after receipt) of any request for non-public information with respect of, or an Acquisition Proposal for, it or any of its Subsidiaries, and to describe the material terms and conditions of any such request or Acquisition Proposal in reasonable detail (including the identity of the Persons making such Acquisition Proposal), (B) keep Rotor fully informed on a current basis of any modifications to such request, offer or information and (C) not (and shall cause its Subsidiaries and their respective Representatives not to) conduct any further discussions with, provide any information 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 any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal or (v) submit any Acquisition Proposal to the vote of any Company Shareholdernegotiations with such Persons. The Seller Guarantors and the Sellers shall, and Company shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior (other than Rotor and its Representatives) that may be ongoing with respect to an Acquisition Proposal, terminate any such Person’s and such Person’s Representative’s access to any electronic data room. The Company shall not release any third party from, or on waive, amend or modify any standstill or confidentiality provision with respect to an Acquisition Proposal in any agreement to which it or any Pre-Closing Holder is a party, and shall promptly following the date hereof send a written request (email being sufficient) to any Person to whom the Company or any of its Representatives provided confidential information of a Group Company in connection with an Acquisition Proposal, which written request shall instruct such Person to return or confirm (in writing, email being sufficient) destruction of all such confidential information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Rotor Parties shall not, and each of them shall cause their Representatives not to on behalf of the Rotor Parties, directly or indirectly: (i) accept, initiate, respond to, knowingly encourage, solicit, negotiate, provide information with respect to or discuss other offers with respect to any Acquisition Proposal. If merger, capital stock exchange, asset acquisition, stock purchase, reorganization, recapitalization or similar business combination with any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any Person other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and than the Company shall promptly notify Acquiror in writing after their receipt ofand its Representatives (each, or any of their Affiliates or Representatives receipt of, (i) any Acquisition a “Rotor Proposal”), (ii) issue or execute any inquiryContract, expression indication of interest, proposal memorandum of understanding, letter of intent, or offer that would reasonably be expected any other similar agreement with respect to lead to an Acquisition a Rotor Proposal, or (iii) commence, continue or otherwise participate in any other notice that discussions or negotiations regarding, or cooperate in any Person is considering making an Acquisition Proposal or way in connection with a Rotor Proposal. Notwithstanding the foregoing, Rotor’s Affiliates (ivincluding Affiliates of Sponsor) shall not be restricted in any request for nonpublic information relating way with respect to the Company or for access pursuit by such Affiliates of any transaction not related to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Rotor.
Appears in 1 contract
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies, Parent, Parent GP and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support accept, or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related there or filing or submitting a registration statement (or similar document) with the SEC or make any public statement, announcement or filing with respect to a potential or actual offering of securities, other than as expressly contemplated by this Agreement or any Ancillary Document; (v) consummate any Company Acquisition Proposal; or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons regarding a Company Acquisition Proposal, (B) notify Pathfinder promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide written notice as a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Pathfinder reasonably informed on a current basis of any modifications to such offer or information.
(b) From the existence date of these provisionsthis Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Pathfinder shall not, and each of them shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, seek, knowingly encourage (including by means of furnishing or negotiations regardingdisclosing information), knowingly facilitate, accept, or deliver negotiate, directly or make available indirectly, any inquiry, proposal or offer (whether formal or informal, written, oral or otherwise) with respect to any Person a Pathfinder Acquisition Proposal; (ii) furnish or provide any non-public information with respect toor documents to any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Pathfinder Acquisition Proposal, ; (iii) agree enter into, participate in or continue any discussions or negotiations with any third party in connection with or related to, accept, or approve, endorse accept or recommend any Acquisition Proposal, (iv) enter into any letter of intent intent, term sheet or Contract or other arrangement or understanding regarding any Pathfinder Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with an offering of any securities of Pathfinder (or any controlled Affiliate or successor of Pathfinder), other Contract contemplating than expressly contemplated by this Agreement or otherwise relating to any Acquisition Proposal or Ancillary Document; (v) submit consummate any Pathfinder Acquisition Proposal Proposal; or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote of any Company Shareholderforegoing. The Seller Guarantors and the Sellers shallPathfinder agrees to (A) terminate, and shall cause NewCoits Representatives to terminate, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person or group of Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and than the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any regarding a Pathfinder Acquisition Proposal, (iiB) notify the Company promptly upon receipt of any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that any Person is considering making an Pathfinder Acquisition Proposal or (iv) any request for nonpublic information relating by Pathfinder, and to the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Pathfinder Acquisition Proposal in reasonable detail (including the identity of any person or entity making such Pathfinder Acquisition Proposal) and to provide a copy of any such Pathfinder Acquisition Proposal, inquiryif extended in writing, expression of interest, proposal, offer, notice or request and (2C) keep the identity Company reasonably informed on a current basis of any modifications to such offer or information.
(c) For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 4.6 shall not prohibit the Company, Pathfinder or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 4.6 (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or Group making any such Pathfinder Acquisition Proposal, inquiryas applicable, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request the covenants and any of such information agreements contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)this Section 4.6.
Appears in 1 contract
Samples: Business Combination Agreement (Pathfinder Acquisition Corp)
Exclusive Dealing. (a) From and after During the Agreement Date until period from the Closing or the earlier termination date of this Agreement in accordance with Article 11 (through and including the “Pre-Closing Period”)Date, the Seller Guarantors, the Sellers, NewCo and the Company Casella shall not, and shall cause their respective Affiliates its and its Subsidiaries, Representatives not and other agents of Casella and its Subsidiaries to refrain from taking any action to, directly or indirectly, (i) solicitapprove, authorize, encourage, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutessolicit, or would reasonably be expected to lead engage in discussions or negotiations with, or provide any information to, an Acquisition Proposal, any Person other than Purchaser and its Affiliates or Representative concerning any Alternate Transaction (iias defined below) and Casella shall not enter into, participate in, maintain or continue and Casella shall prevent its Subsidiaries from entering into any 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 toAlternate Transaction. For purposes hereof, an Acquisition Proposal, (iii) 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 (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and “Alternate Transaction” shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, mean (i) any Acquisition Proposalmembership interest purchase, stock purchase, merger, consolidation, reorganization, change in organizational form, spin-off, split-off, recapitalization, sale of equity interests or other similar transaction involving the Companies or their Subsidiaries, (ii) any inquiry, expression sale or other disposition of interest, proposal all or offer that would reasonably be expected to lead to an Acquisition Proposalany significant portion of the assets of the Companies and their respective Subsidiaries, (iii) any other notice that transaction in respect of the Companies and their respective Subsidiaries which results directly or indirectly, in a change of control of the Companies or their Subsidiaries or sale of any Person is considering making an Acquisition Proposal minority equity interest in a Company or one of its Subsidiaries (except as specifically permitted by Section 6.3(b), (iv) any request for nonpublic information relating transaction similar to the Company transactions contemplated by the Ancillary Agreements or for access to (v) any other transaction or series of the propertiestransactions which has substantially similar economic effects, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of in each such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Datecase, in which case such notice transaction Purchaser does not participate; provided, this Section 6.4(a) shall not restrict Casella with respect to a Change of Control of Casella, provided, that the same does not affect Purchaser’s rights hereunder. Casella will disclose not vote the existence capital stock or other voting interests of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During its Subsidiaries in favor of any Alternate Transaction.
(b) Immediately following the Pre-Closing Periodexecution of this Agreement, the Company shall keep Acquiror fully informed of the status and details ofCasella shall, and shall cause each of its Affiliates, and shall direct each of their respective Representatives, to terminate any modification existing discussion or negotiations with any Persons, other than Purchaser (and its Affiliates and Representatives), concerning any Alternate Transaction. Casella shall, and shall direct its Subsidiaries and its and their respective Representatives to, request the return of any such inquiry, expression of interest, proposal or offer due diligence materials provided to any Persons (other than Purchaser and its Affiliates and Representatives) in connection with any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)potential Alternate Transaction.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Casella Waste Systems Inc)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the Closing earlier of the Arrangement Effective Time or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies, its controlled Affiliates and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support directly or induce the makingindirectly, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes(written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal; (iii) discuss or negotiate with any Person a Company Acquisition Proposal (other than to inform such Person of the restrictions set forth in this Section 5.5(d), (iv) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (v) take meaningful steps in preparation for, or conduct, a public offering of any Equity Securities of any Group Company (or any Affiliate or successor of any Group Company); or (vi) otherwise cooperate in any way with, or knowingly assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (A) notify Prospector promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep Prospector reasonably informed on a current basis of any modifications to such offer or information. Notwithstanding anything to the contrary in this Section 5.6(a), this Agreement shall not prevent the Company or its board of directors from, prior to obtaining the Company Required Approval in respect of the Company Arrangement Resolution, disclosing to Company Shareholders the receipt, existence or terms of a bona fide Company Acquisition Proposal received after the date hereof that did not result from a material breach of this Section 5.6(a).
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Prospector shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly: (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Prospector Acquisition Proposal; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Prospector Acquisition Proposal, ; (iii) agree to, accept, approve, endorse discuss or recommend negotiate with any Person a Prospector Acquisition ProposalProposal (other than to inform such Person of the restrictions set forth in this Section 5.5(d), (iv) enter into any letter of intent Contract or any other Contract contemplating arrangement or otherwise relating to any understanding regarding a Prospector Acquisition Proposal or Proposal; (v) submit any Acquisition Proposal to the vote take meaningful steps in preparation for, or conduct, an offering of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each securities of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated Prospector (or any and all existing activities, discussions Affiliate or negotiations with any Persons conducted prior to successor of Prospector); or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or (vi) otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or knowingly assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Prospector agrees to (A) notify the Company promptly upon receipt of any Prospector Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Prospector, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Prospector Acquisition Proposal in reasonable detail (including the identity of any person or entity making such Prospector Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information. For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 5.5(d) shall not prohibit the Company, Prospector or any of their respective Representatives from taking any actions in the Ordinary Course that are not otherwise in violation of this Section 5.5(d) (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or Prospector Acquisition Proposal, inquiryas applicable, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request the covenants and any of such information agreements contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialthis Section 5.5(d).
Appears in 1 contract
Samples: Business Combination Agreement (Prospector Capital Corp.)
Exclusive Dealing. (a) From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company shall not, and shall cause the other Group Companies and, with respect to clauses (iii) and (iv), the Company’s current or future parent entity, Affiliate, or Subsidiary, and its and their respective Affiliates and Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support endorse, recommend, accept, discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer that constitutes(whether formal or informal, written, oral or otherwise) with respect to a Company Acquisition Proposal; (ii) furnish or provide any non-public information or documents to any Person in connection with, or would that could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iiiii) enter into, participate in or continue in any discussions or negotiations with any third party in connection with or related to, or approve, accept, or enter into any letter of intent, term sheet or Contract or other arrangement or understanding regarding, any Company Acquisition Proposal; (iv) prepare, submit, file or take any steps in connection with a public or other offering or sale of any Equity Securities of any Group Company (or any Affiliate, current or future parent entity or successor of any Group Company), including making any filings or confidential submissions to the SEC related thereto; (v) consummate any Company Acquisition Proposal or (vi) otherwise cooperate in any way with, or assist or participate in, maintain or continue knowingly facilitate or encourage any communications effort or attempt by any Person to do or seek to do any of the foregoing. The Company agrees to (except solely A) terminate, and cause each of its parent entities, Affiliates and Subsidiaries, and its and their Representatives to terminate, any and all existing discussions or negotiations with any Person or group of Persons other than Dragoneer and its Affiliates regarding a Company Acquisition Proposal, (B) notify Dragoneer promptly upon receipt of any Company Acquisition Proposal by any Group Company or Affiliate or any officer, director, equity holder, employee or other Representative, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and to provide a copy of any such Company Acquisition Proposal, if extended in writing, and (C) keep Dragoneer reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Dragoneer Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written notice as or oral) with respect to the existence of these provisionsa Dragoneer Acquisition Proposal; (ii) furnish or negotiations regarding, or deliver or make available to any Person disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Dragoneer Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Dragoneer Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of intent any securities of any Dragoneer Party (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Dragoneer Party); or (v) submit any Acquisition Proposal to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or otherwise cooperate in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt ofway with, or assist or participate in, or knowingly facilitate or encourage any of their Affiliates effort or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) any other notice that attempt by any Person is considering making an Acquisition Proposal to do or (iv) any request for nonpublic information relating seek to the Company or for access to do any of the properties, books or records of foregoing. Dragoneer agrees to (A) notify the Company promptly upon receipt of any Dragoneer Acquisition Proposal by any Person or Persons other than Acquiror that would reasonably be expected Dragoneer Party, and to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Dragoneer Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person any person or Group entity making any such Dragoneer Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request ) and (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, B) keep the Company shall keep Acquiror fully reasonably informed on a current basis of the status and details of, and any modification to, any modifications to such inquiry, expression of interest, proposal offer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)information.
Appears in 1 contract
Samples: Business Combination Agreement (Dragoneer Growth Opportunities Corp. II)
Exclusive Dealing. (a) The Company shall immediately cease and cause to be terminated all existing discussions and negotiations with any parties with respect to any proposal that constitutes or may be reasonably expected to constitute or lead to a Company Acquisition Proposal. From and after the date of this Agreement Date until the earlier of the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)its terms, the Seller Guarantors, the Sellers, NewCo and the Company Parties shall not, and shall cause the other Group Companies not to, and shall not authorize or permit their respective Affiliates Representatives to, and shall use their reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, entertain, knowingly encourageencourage (including by means of furnishing or disclosing information), knowingly facilitate, support discuss or induce the makingnegotiate, submission directly or announcement of indirectly, any inquiry, expression of interest, proposal or offer (written or oral) that constitutes, or would may reasonably be expected to lead to, an a Company Acquisition Proposal, ; (ii) enter into, participate in, maintain furnish or continue any 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 disclose any non-public information with respect toto any Person in connection with, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would could reasonably be expected to lead to, an a Company Acquisition Proposal, ; (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or take any steps in connection with a public offering of intent any Equity Securities of any Group Company or Merger Sub (or any other Contract contemplating Affiliate or otherwise relating to successor of any Acquisition Proposal Group Company or Merger Sub); (v) submit waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal Proposal, including without limitation any “standstill” or similar provisions thereunder, or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to do or seek to do any of the vote foregoing. The Company agrees to (A) notify SPAC promptly upon receipt of any Company Shareholder. The Seller Guarantors and the Sellers shallAcquisition Proposal by any Group Company or Merger Sub, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of any such Company Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and Proposal in reasonable detail (2) including the identity of the Person Persons making such Company Acquisition Proposal) and (B) keep SPAC reasonably informed on a current basis of any modifications to such offer or Group information.
(b) Notwithstanding anything to the contrary in Section 5.6(a) or Section 5.13, this Agreement shall not prevent the Company or the Company Board from:
(i) making any legally required disclosure to shareholders with regard to the transactions contemplated by this Agreement or a Company Acquisition Proposal; provided, that this clause (i) shall not be deemed to permit the Company or the Company Board to effect a Company Change in Recommendation except in accordance with Section 5.6(c);
(ii) prior to obtaining the Company Preferred Shareholder Approval and the Company Shareholder Approval, making a Company Change in Recommendation (only to the extent permitted by Section 5.6(c)); or
(iii) resolving, authorizing, committing or agreeing to take any of the foregoing actions, only to the extent such actions would be permitted by the foregoing clauses (i) through (ii).
(c) Notwithstanding anything in this Section 5.6 or Section 5.13 to the contrary, if, at any time prior to obtaining the Company Preferred Shareholder Approval and the Company Shareholder Approval, the Company Board determines in good faith, in response to an Intervening Event, after consultation with its outside legal counsel, that the failure to make a Company Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company or the Company Board may, prior to obtaining the Company Preferred Shareholder Approval and the Company Shareholder Approval, make a Company Change in Recommendation; provided, that the Company will not be entitled to make, or agree or resolve to make, a Company Change in Recommendation unless (i) the Company delivers to SPAC a written notice (an “Intervening Event Notice”) advising SPAC that the Company Board proposes to take such action and containing the material facts underlying the Company Board’s determination that an Intervening Event has occurred, and (ii) at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day immediately following the day on which the Company delivered the Intervening Event Notice (such period from the time the Intervening Event Notice is provided until 5:00 p.m. New York City time on the fifth (5th) Business Day immediately following the day on which the Company delivered the Intervening Event Notice (it being understood that any material development with respect to an Intervening Event shall require a new notice with an additional four (4) Business Day (instead of five (5) Business Day) period from the date of such notice), the “Intervening Event Notice Period”), the Company Board, after considering in good faith any proposed adjustments to the terms and conditions of this Agreement proposed by SPAC so as to obviate the need for a Company Change in Recommendation, reaffirms in good faith (after consultation with its outside legal counsel) that the failure to make a Company Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law. During the Intervening Event Notice Period, (x) the Company shall not make a Company Change in Recommendation, and (y) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, engage in good faith negotiations with SPAC and its Representatives to make such adjustments in the terms and conditions of this Agreement so as to obviate the need for a Company Change in Recommendation. For the avoidance of doubt, in no event shall the Company be permitted to accept a Company Acquisition Proposal, inquiryor take any action prohibited by Section 5.6(c) in connection therewith, expression of interest, proposal, offer, notice or request make a Company Change in Recommendation in connection with a Company Acquisition Proposal.
(except to d) If the extent any of such information is deemed confidential under Company makes a confidentiality or non-disclosure agreement that is already Company Change in place as of the Agreement Date, Recommendation in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialaccordance with Section 5.6(c). During the Pre-Closing Period, the Company shall keep Acquiror fully informed terminate this Agreement in accordance with Article VII and concurrently therewith pay a termination fee to SPAC in an amount equal to $14.625 million (“Termination Fee”) in immediately available funds as liquidated damages and not as a penalty.
(e) From the date of this Agreement until the earlier of the status and details ofClosing or the termination of this Agreement in accordance with its terms, SPAC shall not, and any modification shall cause its Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any such inquiry, expression of interest, proposal or offer and (written or oral) with respect to a SPAC Acquisition Proposal; (ii) furnish or disclose any correspondence or communications related thereto and shall provide non-public information to Acquiror a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is Person in writingconnection with, or that could reasonably be expected to lead to, a reasonable written summary thereofSPAC Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a SPAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of any securities of SPAC (or any Affiliate or successor of SPAC, if it is not other than the PIPE Financing); or (v) otherwise cooperate in writing (except any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person to the extent do or seek to do any of the foregoing. SPAC agrees to (A) notify the Company promptly upon receipt of any SPAC Acquisition Proposal by SPAC, and to describe the material terms and conditions of any such information is deemed confidential under SPAC Acquisition Proposal in reasonable detail (including the identity of any Person making such SPAC Acquisition Proposal) and (B) keep the Company reasonably informed on a confidentiality current basis of any modifications to such offer or non-disclosure agreement that is already in place as information. The transfer of the Agreement Date, in which case such notice will disclose SPAC Evaluation Material pursuant to Section 5.19 shall not violate the existence terms of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidentialthis Section 5.6(e).
Appears in 1 contract
Samples: Business Combination Agreement (Collective Growth Corp)
Exclusive Dealing. (a) On the date of this Agreement, the Seller Parent shall, and shall cause its Representatives to, immediately discontinue any discussions or negotiations with any Person (other than the Buyer Parent) relating to a potential Acquisition Transaction.
(b) From and after the date of this Agreement Date until the earlier of the Second Closing or the earlier Date and any termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”)pursuant to ARTICLE IX, the Seller Guarantors, the Sellers, NewCo and the Company shall Parent will not, and shall will cause their respective Affiliates and its Representatives not to, directly or indirectly, take any of the following actions with any Person other than the Buyer Parent: (i) solicit, initiate, seekauthorize, entertain, knowingly encourage, knowingly facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutesrecommend, or knowingly encourage any proposals or offers from, or conduct discussions with or engage in negotiations with any Person relating to, or that would reasonably be expected to lead to, an a potential Acquisition ProposalTransaction, (ii) enter into, participate in, maintain furnish or continue any communications (except solely cause to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available be furnished to any Person any Person, other than the Buyer Parent, non-public information relating to any of the SSD Business, the Fab Assets or the NAND Business in connection with respect toa potential Acquisition Transaction, 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 any Acquisition Proposal, (iv) enter into any letter of intent agreement with any Person providing for a potential Acquisition Transaction.
(c) If the Seller Parent or any other Contract contemplating of its Representatives receives any inquiry or otherwise proposal relating to a potential Acquisition Transaction from any Acquisition Proposal or Person (vother than the Buyer Parent) submit at any Acquisition Proposal time prior to the vote earlier of the Second Closing Date and any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date termination of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to takeARTICLE IX, then the Seller Guarantors Parent shall (i) promptly notify such Person in writing that the Seller Parent is subject to a contractual obligation not to consider such inquiry or proposal and (ii) notify the Buyer Parent of the fact of, but not any terms of, such inquiry or proposal and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1Seller Parent’s response thereto.
(bd) During Within a reasonable time following the Pre-Closing Perioddate hereof, each the Seller Parent shall request, or cause to be requested, that any Person that has since January 1, 2018 executed a confidentiality agreement (other than the Confidentiality Agreement) relating to an Acquisition Transaction or a potential Acquisition Transaction to promptly return or destroy all information, documents and materials relating to any such proposal with respect to an Acquisition Transaction, to the Business, to any of the Seller Guarantors, Sellers’ or the Sellers’ respective businesses, NewCo and the Company shall promptly notify Acquiror in writing after operations or affairs heretofore furnished by any Seller or their receipt of, respective officers or directors or any of their Affiliates to such Person or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 for access to any of its Representatives in accordance with the propertiesterms of such confidentiality agreement, books or records of the Company by any Person or in each case, for all Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing PeriodSellers, the Company shall keep Acquiror fully informed of the status Buyer and details oftheir respective directors, and any modification toofficers, any such inquiryemployees, expression of interest, proposal advisors or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Representatives.
Appears in 1 contract
Exclusive Dealing. (a) From and after the Agreement Date until the Closing or the earlier termination of this Agreement in accordance with Article 11 (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo and the The Company shall not, and shall cause their respective Affiliates and Representatives not permit ----------------- any of its Subsidiaries to, directly and the Company and its Subsidiaries shall not authorize or indirectlypermit any officer, (i) director or employee of, or any financial advisor, attorney, accountant or other advisor or representative retained by, the Company or any of its Subsidiaries to, solicit, initiate, seekknowingly encourage (including by way of furnishing information), entertain, knowingly encourage, knowingly facilitate, support endorse or induce the making, submission or announcement of enter into any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any 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 agreement with respect to, or take any other action regardingthat would reasonably be expected to facilitate, any inquiry, expression inquiries or the making of interest, any proposal or offer that constitutes, or would may reasonably be expected to lead to, an Acquisition any Takeover Proposal, . The Company shall promptly (iiiand in no event later than one (1) agree to, accept, approve, endorse or recommend Business Day after obtaining knowledge thereof) advise FACO orally and in writing of any Acquisition Proposal, (iv) enter into any letter of intent Takeover Proposal or any other Contract contemplating inquiries or otherwise relating discussions with respect thereto and shall promptly, but in any event within two (2) Business Days of receipt, furnish to FACO a copy of any Acquisition Proposal such written proposal or a written summary of any such oral proposal. Neither the Board of Directors of the Company nor any committee thereof shall (a) withdraw or modify, or propose to withdraw or modify, in a manner adverse to FACO the approval or recommendation by the Board of Directors of the Company of the Merger or this Agreement or (vb) submit approve or recommend, or propose to approve or recommend, any Acquisition Takeover Proposal other than pursuant to the vote Merger or this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Board of Directors of the Company (or any officer of the Company Shareholder. The Seller Guarantors and acting solely at the Sellers shall, and shall cause NewCo, instruction of the Board of Directors of the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause ) from (i) furnishing information to be terminated any and all existing activities, or entering into discussions or negotiations with any Persons conducted prior to unsolicited Person or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantor, any Seller or the Company, whether in his or her capacity as such or in taking any other capacity, takes any action if and only to the extent that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes Board of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each Directors of the Seller Guarantors, the Sellers, NewCo and the Company shall promptly notify Acquiror have determined in good faith, that such action is required in the exercise of its fiduciary duties, based upon the advice of its outside counsel confirmed in writing after their receipt of, by such outside counsel or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that 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 complying with Rule 14d-9 and Rule 14e-2 promulgated under the Company or for access to any of the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Exchange Act.
Appears in 1 contract
Exclusive Dealing. (a) From and after the Agreement Date date hereof until the earlier of the Closing or Date and the earlier valid termination of this Agreement in accordance with Article 11 Agreement, each Seller agrees (the “Pre-Closing Period”), the Seller Guarantors, the Sellers, NewCo on its own behalf) and the Company agrees (on behalf of itself and the other Transferred Entities) not to, and each shall notcause each of its respective Affiliates, shall cause its and their respective officers, directors and employees, and shall cause direct its and their respective Affiliates agents, investment bankers, financial advisors, attorneys, accountants and Representatives other representatives (collectively, “Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, seeksolicit or knowingly encourage the submission to any Transferred Entity, entertain, knowingly encourage, knowingly facilitate, support any Seller or induce the making, submission any of their respective Affiliates or announcement Representatives of any inquiry, expression of interest, proposal or offer that constitutes, constitutes or would reasonably be expected to lead to, an to any Acquisition Proposal, Transaction;
(ii) enter into, participate engage in, maintain continue or continue otherwise participate in any communications (except solely to provide written notice as to the existence of these provisions) discussions or negotiations regardingwith a third party in connection with any Acquisition Transaction, or deliver or make available to any Person provide any non-public information with respect to, or take data concerning the Transferred Entities to any third party (other action regarding, any inquiry, expression of interest, proposal than Purchaser or offer its representatives) that constitutes, or would reasonably be expected to lead to, make a proposal regarding an Acquisition ProposalTransaction (including to afford any access to the personnel, offices, facilities, properties or books and records of the Transferred Entities) or otherwise knowingly facilitate or encourage any effort or attempt by any such third party to make, finance or implement any Acquisition Transaction; or
(iii) agree toapprove or recommend, accept, approve, endorse or recommend any Acquisition Proposal, (iv) enter into any agreement, agreement in principle, understanding, term sheet, letter of intent intent, purchase agreement, option or any other Contract contemplating similar instrument or otherwise arrangement relating to any Acquisition Proposal or Transaction.
(va) submit any Acquisition Proposal Notwithstanding anything in this Section 5.5 to the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCocontrary, the CompanySellers, the Transferred Entities and their respective Affiliates and each of Representatives shall be permitted to (i) discuss or approve or enter into any agreements or arrangements amongst themselves or with their respective Representatives toRepresentatives, promptly following and (ii) respond to any unsolicited inquiries (or inquiries that were solicited prior to the date hereof hereof) regarding any Acquisition Transaction to inform such parties that the Transferred Entities are not engaging in discussions at the present time.
(a) Each of the Sellers (on its own behalf) and during the Pre-Closing Period, Company (on its own behalf and on behalf of the other Transferred Entities) shall and shall instruct its respective Representatives to immediately cease and cause to be terminated suspend any and all existing activities, discussions or negotiations with any Persons person or entity (other than Purchaser, its Affiliates or its or their respective Representatives and other than the Sellers and the Transferred Entities and any of their respective Affiliates or Representatives) conducted prior to or on the date of this Agreement heretofore with respect to any Acquisition ProposalTransaction. If any Representative or Affiliate of any Seller Guarantor, any Seller or Promptly following the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors execution and the Sellers shall be deemed for all purposes delivery of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing PeriodAgreement, each of the Seller GuarantorsSellers (on its own behalf) and the Company shall cause access to the electronic data room established for “Project Camaro” to be restricted solely to Purchaser or persons designated by Purchaser (provided, for the avoidance of doubt, the Sellers, NewCo the Transferred Entities and their respective Representatives shall continue to have access to the data room).
(a) The Company shall promptly notify Acquiror (and in writing after their receipt ofany event within three (3) Business Days hereof) deliver a written notice to each such Person to the effect that the Company is ending all such solicitations, communications, activities, discussions or negotiations with such Person, effective on the date hereof, which written notice shall also request that each Person promptly return or destroy all non-public information previously furnished to such Person or any of their Affiliates its representatives by or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression on behalf of interest, proposal or offer that 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 for access to any of its Subsidiaries. Without limiting the propertiesforegoing, books it is agreed that any violation or records breach of the Company restrictions or obligations set forth in this Section 5.5 by any Person Transferred Entity or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent by any of such information is their respective Representatives shall be deemed confidential under to be a confidentiality or non-disclosure agreement that is already in place as breach of Section 5.5 by the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential). During the Pre-Closing Period, the Company shall keep Acquiror fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)Company.
Appears in 1 contract
Exclusive Dealing. (a) From and after Each party hereto agrees that during the Agreement Date until period from the date hereof through the Closing or the earlier termination of this Agreement in accordance with Article 11 (9, none of the “Pre-Closing Period”), the Seller Guarantors, Company or its Subsidiaries or the Sellers, NewCo ’ Representative or the Sellers that execute and deliver to the Company shall notBuyer Indemnification Agreements on the date hereof and their respective controlled Affiliates shall, and each of the foregoing Persons shall use reasonable efforts to cause their respective Affiliates and Representatives officers, directors, managers, employees, agents, consultants, advisors or other representatives not to, directly or indirectly, (ia) solicit, initiate, seekinduce, entertain, knowingly encourage, knowingly facilitate, support or induce facilitate the making, submission or announcement of any inquiryproposals, expression of interest, proposal offers or offer that constitutesinquiries from any Person with respect to, or enter into negotiations or any agreement relating to an Acquisition Transaction (an “Acquisition Proposal”) or take any action that would reasonably be expected to lead to, to an Acquisition Proposal, with any Person, in any case other than Buyer or any of its Affiliates, (iib) enter into, participate in, maintain or continue furnish any communications (except solely to provide written notice as to information regarding the existence of these provisions) or negotiations regarding, or deliver or make available Acquired Companies to any Person any non-public information in connection with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected in response to lead to, an Acquisition Proposal, (iii) 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 (v) submit an inquiry or indication of interest in a merger, consolidation or other business combination involving any Acquisition Proposal to Ownership Interest in, or a material portion of the vote of any Company Shareholder. The Seller Guarantors and the Sellers shall, and shall cause NewCo, the Company, their respective Affiliates and each of their respective Representatives to, promptly following the date hereof and during the Pre-Closing Period, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal. If any Representative or Affiliate of any Seller Guarantorassets of, any Seller or the Company, whether in his or her capacity as such or in any other capacity, takes any action that the Seller Guarantors or the Sellers are obligated pursuant to this Section 6.1 to cause such Representative or Affiliate not to take, then the Seller Guarantors and the Sellers shall be deemed for all purposes of this Agreement to have breached this Section 6.1.
(b) During the Pre-Closing Period, each of the Seller GuarantorsAcquired Companies, other than in connection with the Sellerstransactions contemplated by this Agreement, NewCo and the Company shall promptly notify Acquiror in writing after their receipt of, or any of their Affiliates or Representatives receipt of, (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (c) engage in any discussions or negotiations with any Person with respect to an Acquisition Transaction or Acquisition Proposal, (d) approve, endorse or recommend any Acquisition Proposal, or (e) enter into any commitment, understanding, term sheet, letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoing, any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by (i) any of the Acquired Companies, (ii) the Sellers’ Representative or (iii) any other notice of the Sellers that any Person is considering making an Acquisition Proposal or (iv) any request for nonpublic information relating execute and deliver to the Company or for access to any of Buyer Indemnification Agreements on the properties, books or records of the Company by any Person or Persons other than Acquiror that would reasonably be expected to lead to an Acquisition Proposal. Such notice shall describe (1) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (2) the identity of the Person or Group making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request (except to the extent any of such information is deemed confidential under a confidentiality or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request date hereof and any of such information contained therein that is non-confidential)their respective controlled Affiliates shall be deemed to constitute a breach of this Section 7.05 by the Company. During Promptly following the Pre-Closing Periodexecution and delivery of this Agreement, the Company shall keep Acquiror fully informed of cause the status other Acquired Companies and details ofits and their Affiliates and their respective directors, managers, officers, employees, agents, consultants, advisors and any modification other representatives to, immediately cease and cause to be terminated any such inquiry, expression of interest, proposal existing discussions with any Person (other than Buyer or offer and any correspondence or communications related thereto and shall provide to Acquiror a true, correct and complete 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 (except to the extent any of such information is deemed confidential under a confidentiality its Affiliates) that relate to any Acquisition Proposal or non-disclosure agreement that is already in place as of the Agreement Date, in which case such notice will disclose the existence of such inquiry, offer, proposal, indication of interest or request and any of such information contained therein that is non-confidential)potential Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (Compass Group Diversified Holdings LLC)
