Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05. (b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 4 contracts
Sources: Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Apexigen, Inc.), Business Combination Agreement (Brookline Capital Acquisition Corp.)
Exclusivity. From the date hereof until the earlier of: (a) From the Closing Time; and (b) the date on which this Agreement terminates or is terminated pursuant to Article 12, the Vendor agree that they shall not, directly or indirectly through any of their respective Affiliates, officers, directors, partners, employees, shareholders, agents or representatives: (i) discuss, pursue or complete a possible transfer, sale or other disposition of the Purchased Shares or any interest therein with any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives (a "Competing Transaction") or provide any information to any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives in connection therewith; or (ii) except in connection with the performance of this Agreement or as required by Applicable Law, disclose the terms of this Agreement to any Person other than the Purchasers (or Affiliates of the Purchasers) or their respective representatives. Notwithstanding the foregoing, the Vendor is hereby authorized to respond to an inquiry or other expression of interest without being deemed to have violated this Section 11.1 to the extent the Vendor does not solicit, initiate or encourage such inquiry or other expression of interest, provided that the Vendor's response is limited to informing the Person making the inquiry or other expression of interest that the Vendor has entered into a binding agreement for the sale of Purchased Shares and is prohibited from further discussing or entertaining any proposals in respect of a Competing Transaction. The Vendor will, and will cause each of its Affiliates and their respective officers, directors, partners, employees, shareholders, agents and representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliates) relating to a potential acquisition of all the Purchasers (or substantially all Affiliates of the equity interests Purchasers)) with respect to any inquiry, proposal or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingoffer that constitutes, or furnish to any person any information with respect to, or cooperate in any way that would otherwise may reasonably be expected to constitute or lead to, any Alternative Transaction or (C) commencea Competing Transaction. Notwithstanding anything to the contrary in this Agreement, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, it is acknowledged that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation covenants of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth Vendor contained in this Section 7.05(a) by 11.1 relate to the Company Vendor acting solely in the capacity of a holder of, or its Representatives exercising control or direction over, the Purchased Shares and shall be deemed to be not affect or restrict any fiduciary or legal obligation imposed on the directors, officers, employees or representatives of the Vendor acting in such person's capacity as a breach director of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp), Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp), Share Purchase Agreement (Waterous Energy Fund Iii (Us) Lp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respondrespond to, or provide information to, any Person (other than Acquiror and/or any of its Affiliates or Representatives) concerning any merger, recapitalization or similar business combination transaction, or any sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”) or (ii) commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) During the Interim Period, each Acquiror Party shall not take, nor shall it permit any of its Affiliates or any of its or their respective Representatives to take, whether directly or indirectly, any action to (i) solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond to, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders equityholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) or (ii) approve, endorse or recommend, or make any public statement approving, endorsing or recommending, any Business Combination Proposal, in the case of each of clauses (i) and (ii), other than a Business Combination Proposal with the Company, its stockholders and equityholders and/or their respective affiliates Affiliates and Representatives; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). BCAC Each Acquiror Party shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal, other than with the Company, its equityholders or their respective controlled Affiliates.
Appears in 3 contracts
Sources: Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (Cerberus Telecom Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on Prior to the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Article VIII, Seller and Seller Parent shall not (and shall not permit their respective directors, managers, officers, employees, equityholders, Affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to), directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the Company Agreement Date or received after the Agreement Date from any other Person to consummate a Competing Transaction or (ii) solicit, initiate, facilitate, encourage, engage in discussions or negotiations with, or furnish information to, any Person other than Buyer with respect to a Competing Transactions.
(b) (i) Seller and Seller Parent shall cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated, (ii) Seller and Seller Parent shall terminate access by any Person other than Buyer to any virtual or electronic data room containing confidential information regarding Seller and/or the Purchased Assets and shall request from each Person that had access to any such data room (other than Buyer and its Representatives) the prompt return or destruction of all non-public information with respect to Seller and/or the Purchased Assets previously provided to such Person, and (iii) Seller and Seller Parent shall not, and shall direct its cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide deal with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (Person other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Buyer with respect to proposing, encouraging, discussing or negotiating any Alternative TransactionCompeting Transactions. The Company also agrees that it will promptly request each person (other than the parties hereto Seller and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Seller Parent shall notify Buyer within 24 hours if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at is made, of any time prior proposed response by Seller or Seller Parent thereto, and any further inquiry, proposal or response from such third party. If and to the Closing, then extent permitted by the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware terms of such inquiry any applicable confidentiality agreements to which Seller or proposal) notify such person in writing that the Company is Seller Parent may be subject to an exclusivity agreement with respect to the sale as of the Company that prohibits it from considering such Agreement Date, all notices shall include the identity of the Person making the inquiry or proposal, the terms thereof, and/or, if in written form, complete and will provide BCAC with a copy of accurate copies thereof, provided, that, if Seller or Seller Parent are not permitted to disclose such information, Seller and Seller Parent shall, nevertheless, indicate whether any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including proposes an upfront cash purchase price in each case the identity excess of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Purchase Price.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Xperi Inc.), Asset Purchase Agreement (Xperi Inc.), Asset Purchase Agreement (Xperi Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause the Company Subsidiaries and shall use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise cooperate in any way regarding a Company Acquisition Proposal (an “Alternative Transaction”as defined herein), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Company Acquisition Proposal or (C) commence, continue or renew any due diligence investigation regarding any Alternative TransactionCompany Acquisition Proposal; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)7.4. The Company shall, and shall direct cause the Company Subsidiaries and shall use reasonable best efforts to cause its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative TransactionCompany Acquisition Proposal. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the a Company Acquisition Proposal to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If For purposes hereof, “Company Acquisition Proposal” means any inquiry, proposal or offer concerning the sale of any material assets of the Company or any Company Subsidiary outside the ordinary course of its Representatives receives business or any inquiry or proposal with respect to an Alternative Transaction at any time prior to of the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale Equity Securities of the Company that prohibits it from considering such inquiry or proposalany Company Subsidiary or any merger, and will provide BCAC with a copy of consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company or any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalCompany Subsidiary, including in each case excluding the identity of Convertible Financing and the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05PIPE Financing.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Business Combination Agreement (Nabors Energy Transition Corp.), Business Combination Agreement (Vast Solar Pty LTD), Business Combination Agreement (Nabors Energy Transition Corp.)
Exclusivity. From the date hereof through the Closing or until such time as this Agreement shall have been terminated pursuant to Article X, Seller will not, nor will Seller authorize any Affiliate or Representative of Seller to, and Seller will instruct its Affiliates or Representatives not to (a) From directly or indirectly solicit, initiate, encourage or participate in any way in (including by way of furnishing confidential information), or take any other action that facilitates any discussion, inquiry, offer, proposal, negotiation or other communication with any Person or group (other than Buyer or its Representatives) relating to, or that could reasonably be expected to result in, any merger, consolidation, sale, exchange or other disposition of any substantial portion of the date assets outside of this Agreement and ending on the earlier ordinary course of business or equity interests of or any business combination, recapitalization, liquidation, dissolution or other similar transaction (ior any combination of any of the foregoing) relating to the Closing and (ii) the termination disposition of this Agreementall, or substantially all, or any substantial portion of, the Company shall notBusiness or the Purchased Assets (each, and shall direct its Representatives not toan “Acquisition Proposal”); (b) disclose, directly or indirectly, to any Person known to Seller to be considering an Acquisition Proposal any information concerning Seller, the Business or any of the Purchased Assets; or (Ac) solicitenter into, negotiate withcontinue or participate in any discussions, provide any nonpublic information regarding the Company’s businessnegotiations or other communications, or enter into any understanding, Contract withor commitment, with any third party relating to, or take any action in any manner knowingly encourage, any proposal furtherance of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether written Acquisition Proposal received by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Seller. The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it Seller will as promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly as practicable (and in no any event later than one within three (13) Business Day after the Company become aware of such inquiry or proposalDays) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy Buyer of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives Seller shall be deemed to be a responsible for any breach of this Section 7.05(a) 6.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vought Aircraft Industries Inc), Asset Purchase Agreement (Boeing Co)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct cause its Representatives and Subsidiaries not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to (A) solicit, negotiate with, provide any nonpublic information regarding purchase of stock or other Equity Securities of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Company (other than BCAC (x) pursuant to or in connection with a Company Benefit Plan or (y) as consideration in an acquisition by the Company or its Subsidiaries, but subject to, and its affiliateswithout limiting anything contained in Section 6.01) relating to a potential acquisition of all or substantially all material portion of the equity interests or assets of the Company, whether by Company and its Subsidiaries or (B) any merger, sale of stock, sale of assets, business combination or otherwise other similar transaction of the Company or its Subsidiaries (an “Alternative TransactionTransaction Proposal”), (Bii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement regardingor deliver any agreement or instrument (including a confidentiality agreement, continue letter of intent, term sheet, indication of interest, indicative proposal or otherwise participate in any discussions regarding, other agreement or furnish instrument) related to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative TransactionProposal; provided, provided that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect agrees to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If notify SPAC if the Company or any of its Representatives receives or Subsidiaries receive any inquiry offer or proposal with communication in respect to of an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalProposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalpromptly communicate to SPAC in reasonable detail the terms and substance thereof, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by and the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Representatives and Representatives Subsidiaries to, immediately cease any and all existing negotiations or discussions or negotiations with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the CompanySEC any Registration Statement on Form S-1 or F-1.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives, its stockholders Subsidiaries and their respective affiliates the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC or any Subsidiary thereof, on the one hand, and any other Person (other than the Company), on the other hand (a “SPAC Alternative Transaction”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or Subsidiaries or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives, its Subsidiaries and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, regarding a Business Combination SPAC Alternative Transaction Proposal.
Appears in 2 contracts
Sources: Merger Agreement (ironSource LTD), Merger Agreement (Thoma Bravo Advantage)
Exclusivity. (a) From Seller agrees that between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Seller shall not, and shall direct take all action necessary to ensure that none of its controlled Affiliates or any of their respective Representatives not to, directly or indirectly, shall:
(Ai) solicit, negotiate with, provide sell any nonpublic information regarding of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person CIT Bank Purchased Assets (other than BCAC and its affiliatespursuant to this Agreement) or solicit, initiate, consider, encourage or accept any other proposals or offers from any Person relating to a potential any direct or indirect acquisition or purchase of all or substantially all any material portion of the equity interests or assets of the CompanyCIT Bank Purchased Assets, whether effected by mergersale of assets, sale of stock, sale merger, exclusive license, or otherwise; provided, however, that Buyers acknowledge and agree that any actions taken by Seller in connection with Servicing and/or resolution or settlement of assets, business combination or otherwise (an “Alternative Transaction”a Transferred Loan shall not be prohibited by this Section 6.15(a), provided such actions are in compliance with Section 6.01; or
(Bii) enter into any agreement regarding, continue or otherwise participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. Seller immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From The Seller shall notify the Buyers promptly, but in any event within twenty-four (24) hours, orally and after in writing if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to the date hereof until Buyers shall indicate in reasonable detail the Effective Time oridentity of the Person making such proposal, if earlieroffer, inquiry or other contact and the termination terms and conditions of this Agreementsuch proposal, BCAC offer, inquiry or other contact. Seller shall not takerelease any Person from, nor shall it permit or waive any of its affiliates or Representatives to take, whether directly or indirectlyprovision of, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any confidentiality agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or the CIT Bank Purchased Assets to which Seller is intended or is reasonably likely to give rise to or result ina party, any offer, inquiry, proposal or indication without the prior written consent of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalBuyers.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Sutherland Asset Management Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, written or oral, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Acquiror and/or any of its Affiliates or Representatives) concerning any purchase of any of the Company’s equity securities or the issuance and sale of any securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries) or any merger recapitalization or similar business combination transaction or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”), or commence, continue or renew any due diligence investigation regarding, or that is reasonably likely to give rise to or result in, any offer, inquiry, proposal indication of interest, written or oral, with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(a). The Company shall, and shall direct its Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions, conversations, negotiations or other communications with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction, and request the prompt return or destruction of all confidential information previously furnished, in each case with respect to any of the foregoing. The Company represents and warrants to Acquiror that this Section 9.04(a) does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which the Company or (to the Company’s Knowledge) any of its Affiliates are currently bound.
(b) During the Interim Period, Acquiror shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, written or oral, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders Company and/or any of their affiliates its Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, Company and its stockholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.04(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions discussions, conversations, negotiations or negotiations other communications with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal, and request the prompt return or destruction of all confidential information previously furnished, in each case with respect to any of the foregoing. Acquiror represents and warrants to the Company that this Section 9.04(b) does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which Acquiror or any of its Affiliates are currently bound. Solely for purposes of this Section 9.04(b), the term “Affiliates” shall exclude any special purpose acquisition companies that are Affiliates of Acquiror.
Appears in 2 contracts
Sources: Merger Agreement (LMF Acquisition Opportunities Inc), Merger Agreement (LMF Acquisition Opportunities Inc)
Exclusivity. (a) From In consideration of the date of this Agreement expenses that CleanTech has incurred and ending on will incur in connection with the earlier of (i) the Closing and (ii) the termination of this Agreementproposed Transaction, the Company ▇▇▇▇▇▇▇▇ Parties agree that until such time as this memorandum of understanding has terminated in accordance with the provisions of paragraph 5 (such period, the "Exclusivity Period"), neither it nor any of its representatives, officers, employees, directors, agents, stockholders, subsidiaries or affiliates (the "▇▇▇▇▇▇▇▇ Group") shall notinitiate, and shall direct its Representatives not tosolicit, entertain, negotiate, accept or discuss, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, or offer from any person (or group of persons other than BCAC CleanTech and its affiliatesaffiliates (a "Competing Proposal") relating to develop a potential acquisition facility or operation at the Site contemplated by this memorandum of all or substantially all of the equity interests or assets of the Companyunderstanding, whether by merger, sale purchase of stock, sale purchase of assets, business combination joint venture, tender offer or otherwise (an “Alternative Transaction”)otherwise, (B) or provide any non-public information to any third party in connection with a Competing Proposal or enter into any agreement regardingagreement, continue arrangement or otherwise participate understanding requiring it to abandon, terminate or fail to consummate the Transaction with CleanTech. The ▇▇▇▇▇▇▇▇ Parties agree to immediately notify CleanTech if any member of the ▇▇▇▇▇▇▇▇ Group receives any indications of interest, requests for information or offers in respect of an Competing Proposal, and will communicate to CleanTech in reasonable detail the terms of any discussions regardingsuch indication, request or furnish offer, and will provide CleanTech with copies of all written communications relating to any person any information with respect tosuch indication, request or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance offer. Immediately upon execution of this Agreement and memorandum of understanding, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company ▇▇▇▇▇▇▇▇ Parties shall, and shall direct its Representatives cause the ▇▇▇▇▇▇▇▇ Group to, immediately cease terminate any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transactionor group of persons other than CleanTech and its affiliates regarding a Competing Proposal. The Company also agrees ▇▇▇▇▇▇▇▇ Parties represent that it will promptly request each person (other than no member of the parties hereto and their respective Representatives) that has prior ▇▇▇▇▇▇▇▇ Group is party to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person bound by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale a Competing Proposal other than under this memorandum of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05understanding.
(b) From If within the Exclusivity Period, the respective ▇▇▇▇▇▇▇▇ Parties do not execute definitive documentation for the Transaction reflecting the material terms and conditions for the Transaction set forth in this memorandum of understanding or material terms and conditions substantially similar thereto (other than as a result of either the mutual agreement by CleanTech and the ▇▇▇▇▇▇▇▇ Parties to terminate this memorandum of understanding or to change such material terms and conditions in any material respects or the unilateral refusal of CleanTech to execute such definitive documentation), then the ▇▇▇▇▇▇▇▇ Parties shall pay to CleanTech an amount equal to the reasonable out-of-pocket expenses in an amount not to exceed $50,000 (including the reasonable fees and expenses of legal counsel, accountants and other advisors and whether incurred prior to or after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage hereof) incurred by CleanTech in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than connection with the Companyproposed Transaction, its stockholders and their respective affiliates and Representatives. BCAC shall, and which amount shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with be payable in same day funds on the Company, its stockholders and their respective affiliates and Representatives) conducted prior to day that is the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalfirst business day after the Exclusivity Period.
Appears in 2 contracts
Sources: Memorandum of Understanding (CleanTech Biofuels, Inc.), Memorandum of Understanding (CleanTech Biofuels, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with Section 9.01, the Company shall not, and shall direct cause the Company Subsidiaries and its and their respective Representatives not to, directly or indirectly, (A) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage (including by way of furnishing non-public information) or respond to or facilitate any inquiries, offers or proposals (written or oral) by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests Exchange Act, concerning any direct or indirect sale or purchase, in a single transaction or a series of related transactions, of any assets of the CompanyCompany or any of the Company Subsidiaries or any shares, capital stock or other equity securities of the Company or any of the Company Subsidiaries, whether by way of merger, sale conversion, consolidation, purchase or issuance of stockequity securities, sale liquidation, dissolution, initial public offering, tender offer or other similar transaction involving the Company or any of assets, business combination or otherwise the Company Subsidiaries (an “Alternative Transaction”), other than with the other Parties and their respective Representatives, (B) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction, (C) enter into any contract or other arrangement or understanding regarding an Alternative Transaction, (D) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, I approve, endorse or recommend, or propose publicly to approve, endorse or recommend an Alternative Transaction, (E) prepare or take any steps in connection with a public offering of any Equity Interests of the Company or any of the Company Subsidiaries or (F) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of Equity Interests of the Company or any of the Company Subsidiaries; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a7.04(a). The Company shall, and shall direct cause the Company Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one three (13) Business Day Days after the Company become becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transactions that prohibits it such Party from considering such inquiry or proposalproposal and notify Parent of the receipt of an Alternative Transaction including a summary of the material terms and conditions of such Alternative Transaction, and unless the Company is bound by a previously executed confidentiality agreement that prohibits such disclosure (in which case, the Company will provide BCAC with use reasonable best efforts to seek a copy waiver of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalapplicable confidentiality restrictions). Without limiting the foregoing, the parties agree Company agrees that any violation of the restrictions set forth in this Section 7.05(a7.04(a) by it or any of the Company Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a7.04(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the First Effective Time or, if earlier, the valid termination of this AgreementAgreement in accordance with Section 9.01, BCAC (i) Parent shall not, and shall direct its Representatives acting on its behalf not taketo, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to (A) initiate, seek, solicit, initiateknowingly facilitate or encourage or submit an indication of interest for, continue any inquiries, proposals or engage offer to a person (including any financial investor or group of financial investors) concerning any direct or indirect sale or purchase, in discussions a single transaction or negotiations witha series of related transactions, of any assets of Parent or any capital stock or other equity securities of Parent, whether by way of merger, conversion, consolidation, purchase or issuance of equity securities or other similar transaction (“Parent Acquisition Proposal”), or enter into (B) participate in any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, negotiations relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
a Parent Acquisition Proposal and (a “Business Combination Proposal”ii) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Parent shall, and shall cause its affiliates and Representatives to, (A) terminate immediately cease any and all existing discussions or negotiations with any Person relating to a Parent Acquisition Proposal and (B) promptly advise the Company in writing of any proposal regarding a Parent Acquisition Proposal that it has received (it being understood that Parent shall not be required to inform the Company of the identity of the person (other than with making such proposal or the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalmaterial terms thereof).
Appears in 2 contracts
Sources: Business Combination Agreement (Rosecliff Acquisition Corp I), Business Combination Agreement (Rosecliff Acquisition Corp I)
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementhereof, the Company Seller shall not, and shall direct cause its Representatives Affiliates not to, directly or indirectly, (Aa) initiate, solicit, negotiate withfacilitate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, discuss, negotiate or accept any proposal ofinquiries, proposals or offers with respect to (i) the acquisition, in a single transaction or a series of related transactions, of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the outstanding shares of any class or series of equity securities or debt securities of Seller, the Company or any of its Subsidiaries or any interests therein, (ii) the acquisition (or assets any lease, license, long-term supply agreement or other arrangement having the same economic effect as an acquisition), in a single transaction or a series of related transactions, of a material portion of the Companyassets and properties of Seller, whether by the Company or any of its Subsidiaries or interests therein (on a consolidated basis), (iii) the merger, sale consolidation or combination of stockSeller, sale the Company or any of assetsits Subsidiaries or (iv) the recapitalization, business combination restructuring, reorganization, liquidation, dissolution or otherwise other extraordinary transaction with respect to Seller, the Company or any of its Subsidiaries (each of the foregoing in clauses (i) through (iv), an “Alternative Acquisition Transaction”), or (Bb) enter into any contract or agreement regardingconcerning or relating to an Acquisition Transaction, continue in each case with a party other than Buyer or otherwise participate in any discussions regardingan Affiliate of Buyer. In the event that Seller receives an inquiry, proposal or offer with respect to an Acquisition Transaction on or after the date hereof and prior to the Closing, or furnish obtains information that such an inquiry, proposal or offer is likely to be made, Seller shall provide Buyer with immediate notice thereof, which notice shall include the terms of, and the identity of the person or persons making, such inquiry, proposal or offer. Seller shall, and shall cause its Affiliates to, immediately terminate any person and all discussions or negotiations with any information third party with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, any Alternative Transaction or (C) commencean Acquisition Transaction. Prior to the Closing, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions Seller shall not be deemed a violation transfer, dispose of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than put an Encumbrance on the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration equity securities of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Subsidiaries.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Exclusivity. 2.1 In consideration of the Purchaser granting the Put Option on the terms of the Put Option Deed, each of the Sellers agrees and undertakes that it shall not and, to the extent that it is in its power to do so, shall procure that its Representatives shall not, from the date hereof:
(a) From the date of this Agreement and ending on the earlier of enter into, participate in or continue discussions or negotiations with any Third Party in connection with or with a view to agreeing or implementing an Alternative Transaction;
(ib) the Closing and allow any Third Party (iior its Representatives) the termination of this Agreementto have access (or continued access) or otherwise provide to any Third Party (or its Representatives) any information in connection with or with a view to agreeing or implementing an Alternative Transaction, the Company shall notor otherwise co-operate with, and shall direct its Representatives not toassist or participate in any approach, directly proposal or indirectly, offer in connection with or with a view to agreeing or implementing an Alternative Transaction;
(Ac) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, initiate or enter into any Contract with, encourage offers or expressions of interest from Third Parties in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating connection with or with a view to a potential acquisition of all agreeing or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (implementing an “Alternative Transaction”), ; or
(Bd) enter into any agreement regardingor arrangement (whether or not conditional) in connection with or with a view to agreeing or implementing an Alternative Transaction.
2.2 Each of the Sellers warrants and undertakes to the Purchaser that:
(a) neither it nor any other member of its Group nor any of its Representatives is, continue or otherwise participate as at the date of this Deed, in any discussions regardingnegotiations in connection with, or furnish with a view to any person any information with respect toagreeing or implementing, or cooperate in any way that would otherwise reasonably be expected to lead to, any an Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to Third Party and any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has such negotiations which commenced prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her this Deed have been terminated; and
(b) prior to the date hereof. If the Company or of this Deed neither it nor any other member of its Representatives receives Group has entered into any inquiry binding arrangements or proposal agreements, whether or not conditional, with respect any Third Party to an effect any Alternative Transaction at any time prior to Transaction.
2.3 This Deed, and the Closingobligations contained in it, then shall come into force on the Company shall promptly date of this Deed and LON4379624t3erminate upon the earlier of (and in no event later than one the Exclusivity Period):
(1a) Business Day after the Company become aware date of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale termination of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Put Option in accordance with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity terms of the person making such inquiry or proposal. Without limiting Put Option Deed;
(b) if the foregoingPut Option is not duly exercised by the Sellers, the parties agree that any violation expiry date of the restrictions set forth Put Option Period;
(c) the Closing Date, or if earlier the date of termination of the SPA in this Section 7.05(aaccordance with the terms of the Put Option Deed or of the SPA;
(d) by the Company or its Representatives shall be deemed to be a any breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05the Put Option Deed or of the SPA by the Purchaser which is material in the context of the Proposed Transaction;
(f) the CDS Condition is not satisfied in the terms set out in clause 4 of the SPA by the date set out therein.
(b) From and after the date hereof until the Effective Time or, if earlier, the 2.4 Upon termination of this AgreementDeed, BCAC all obligations of the Parties under this Deed shall terminate except for the provisions of this clause 2.3 and clauses 5 (Costs), 6 (Third party rights) and 7 (Governing law and Jurisdiction), provided that any rights and liabilities of the Parties which have accrued under this Deed prior to termination (including, without limitation, under clause 2.8) shall continue to exist.
2.5 Neither the Sellers nor any of their respective Affiliates, nor any other person, shall be under any obligation or commitment to exercise the Put Option or to enter into any further agreement in relation to, or to enter into or continue any discussion or negotiation with regard to, the Proposed Transaction, or to accept any proposal or offer in relation to the Proposed Transaction. This Deed shall not takeconstitute, nor should it be construed to constitute, exercise of the Put Option, or acceptance of any other proposal or offer in relation to the Proposed Transaction. The Sellers agree with the Purchaser that they shall each exercise their respective right to decline, or fail, to exercise the Put Option at all times acting in good faith. For the purposes of this Deed, ‘good faith’ (bonne foi) shall be construed in accordance with the applicable provisions of French law.
2.6 Notwithstanding any other term of any Transaction Document, the obligations and liabilities of LSEG and LCH under this Deed, the Put Option Deed and each of the other Transaction Documents are several and, for the avoidance of doubt, neither joint nor joint and several.
2.7 The Purchaser agrees with the Sellers (for the benefit of the Sellers and their respective Affiliates, the members of the DBAG Group and HoldCo) that it permit any of its affiliates or Representatives is not relying upon, and has not been induced to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, grant the Put Option or enter into this Deed, by any agreement withwarranty or representation other than those expressly contained in this Deed and the other Put Option Documents (as defined in the Put Option Deed). For the avoidance of any doubt, neither LCH nor LSEG shall have any liability for or encouragein respect of any breach of any of the warranties given by LCH or LSEG (and the Purchaser shall have no remedy or recourse against LCH or LSEG for any such breach) unless and until the SPA is entered into by all parties to it (and then only on, respond, provide information to or commence due diligence with respect and subject to, any person (other than the Company, its stockholders and/or any terms of their affiliates or Representativesthe SPA), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Exclusivity Agreement, Exclusivity Agreement
Exclusivity. (a) . From the date of this Agreement and ending on until the earlier of (i) Effective Time or, if earlier, the Closing and (ii) the valid termination of this AgreementAgreement in accordance with Section 10.01, the Company Acquiror shall not, and shall direct cause its Representatives not to, directly or indirectly, :
(Aa) solicit, negotiate with, provide intentionally initiate or solicit any nonpublic information inquiries that would be reasonably likely to lead to an offer or proposal regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person a Business Combination;
(other than BCAC and its affiliatesb) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regardingengage in, continue or otherwise participate in any negotiations or discussions regardingconcerning, or furnish provide access to its properties, books and records or any person any confidential information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead data to, any Alternative Transaction Person relating to any Business Combination;
(c) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any proposal or offering relating to any Business Combination;
(Cd) commenceexecute or enter into, continue any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or renew other similar agreement for or relating to any due diligence investigation regarding proposal or offer for any Alternative TransactionBusiness Combination; provided, or
(e) resolve or agree to do any of the foregoing. Acquiror agrees that immediately following the execution, delivery and performance execution of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company it shall, and shall direct use its reasonable best efforts to cause its Representatives to, immediately cease any and all existing solicitations, discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement conducted heretofore in connection with its, his Business Combination or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect request for information that would reasonably be expected to an Alternative Transaction at any time prior to the Closinglead to, then the Company or result in, a Business Combination. Acquiror shall promptly (and in no any event later than one within two (12) Business Day Days) notify, in writing, the Company of the receipt of any inquiry, proposal, offer or request for information received after the Company become aware of such inquiry date hereof that constitutes, or proposal) notify such person would reasonably be expected to result in writing that or lead to, any Business Combination other than with the Company is subject to an exclusivity agreement with respect to the sale Company, which notice shall include a summary of the Company that prohibits it from considering such inquiry or proposalmaterial terms of, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making Person or group of Persons making, such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal, offer or request for information and an unredacted copy of proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”). Acquiror shall promptly (and in any event within two (2) other than with Business Days) keep the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease Company reasonably informed of any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof material developments with respect to, or which is reasonably likely to give rise to or result in, a any such Business Combination Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sable Offshore Corp.), Merger Agreement (Flame Acquisition Corp.)
Exclusivity. From the Agreement Date until June 21, 2015 (the “Exclusivity Period”):
(a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company and its officers shall not, and the Company shall direct not authorize any of its Representatives not todirectors, employees, agents or representatives, including any investment banker, attorney, consultant or accountant (collectively, “Representatives”), to directly or indirectly, (A) solicitsell, negotiate withoffer, provide contract or grant any nonpublic information regarding the Company’s businessoption to sell, pledge, transfer or otherwise dispose of or transfer, or enter into announce the offering of any Contract withdebt securities convertible into, or in exercisable or exchangeable for, shares of capital stock of the Company with terms substantially similar to the Notes (any manner knowingly encouragesuch transaction, a “Competing Transaction”) and;
(b) the Company and its officers shall, and the Company shall instruct its Representatives to, cease any discussions and negotiations with any person or entity other than the HH Purchaser regarding any Competing Transaction or any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead toto a Competing Transaction. For the avoidance of doubt, any Alternative Transaction the offer and sale of common or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation preferred stock of the Transactions Company or securities convertible, exercisable or exchangeable for common or preferred stock (excluding any convertible debt securities), or non-convertible debt securities of the Company shall not be deemed a violation of this Section 7.05(a)Competing Transaction if not prohibited under clause (a) above. The In addition, during the Exclusivity Period, the Company shalland its officers shall not, and the Company shall direct its not authorize any Representatives to, immediately cease (i) engage in any and all existing discussions or negotiations with, or provide any confidential or non-public information or data to, any person other than the HH Purchaser relating to a Competing Transaction, (ii) encourage any effort or attempt by any person other than the HH Purchaser to propose or implement a Competing Transaction, or (iii) execute or enter into with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto HH Purchaser, any letter of intent, exclusivity agreement, agreement in principle, purchase agreement, option agreement, or other similar agreement related to a Competing Transaction. Notwithstanding the foregoing, nothing herein shall prevent the Company from offering and their respective Representativesselling the Notes (a) that has prior to its existing investors to the date hereof executed a confidentiality agreement in connection with itsextent required under the terms of any existing rights of first offer or similar existing rights of the Company’s investors (the “Right of First Offer”) and (b) to other investors or potential investors (the “Other Investors”) (1) set forth on Schedule 7.14 hereto, his or her consideration (2) who are existing investors of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry Subsidiaries who do not have the Right of First Offer or proposal (3) with respect the HH Purchaser’s prior written consent, such consent not to an Alternative Transaction at any time prior be unreasonably withheld (it being agreed that it is reasonable for the HH Purchaser to withhold consent if the Closing, then the Company shall promptly (and in no event later than one HH Purchaser (1) Business Day after the Company become aware of is already in discussions with such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement potential investor with respect to the sale of Transactions or (2) has a pre-existing relationship with such potential investor and is planning to contact such potential investor about the Company that prohibits it from considering such inquiry or proposalTransactions), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalin connection therewith, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage engaging in discussions or negotiations with, providing any confidential or enter non-public information or data to, and/or entering into any purchase agreement for the securities offered in the Transactions with, such existing investors or encourage, respond, provide information to other investors or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalpotential investors.
Appears in 2 contracts
Sources: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc), Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
Exclusivity. (a) From In consideration of the substantial expenditure of time, effort and expense undertaken by the Buyer in connection with its due diligence efforts and the preparation, negotiation and execution of this Agreement, from and after the date of this Agreement and ending on hereof through the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement pursuant to Article 8, no Seller, any Affiliate thereof (including any Company Entity or any director, officer or employee of the same) or any financial or other advisor of a Seller or a Company shall not, and shall direct its Representatives not toEntity shall, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regardinginto, continue or otherwise participate in any discussions or negotiations regarding, except as required or permitted herein, furnish to any Person any information regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, take any action to solicit, initiate, continue encourage or engage facilitate the making or submission of any proposal or offer from any Person relating to the acquisition, directly or indirectly, of any Company Entity, the Business or, other than in discussions the Ordinary Course of Business, any material assets of the Business, other than in connection with the consummation of the transactions under this Agreement. The Sellers hereby confirm to the Buyer that, as of the date hereof, all discussions, negotiations and other activities with any other Person by or negotiations withon behalf of the Sellers of any Company Entity or otherwise with respect to the Business or, other than in the Ordinary Course of Business, assets of the Business, have been terminated and that none of the Sellers or any Company Entity has any obligation to sell to or discuss with any other Person the sale of, or enter into other transaction involving the Business. The Sellers shall notify the Buyer of any agreement with, inquiry or encourage, respond, provide information to proposal received by the Sellers or commence due diligence any Company Entity with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than such transaction within 24 hours of receipt or awareness of the same. The Sellers agree that the rights and remedies for noncompliance with the Companythis Section 5.8 shall include having such provision specifically enforced by any court having equity jurisdiction, its stockholders it being acknowledged and their respective affiliates and Representatives. BCAC shall, and agreed that any such breach or threatened breach shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior irreparable injury to the date hereof with respect to, or which is reasonably likely Buyer and that money damages would not provide an adequate remedy to give rise to or result in, a Business Combination Proposalthe Buyer.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct cause its Representatives and Subsidiaries not to, directly or indirectly, (Ai) solicitinitiate, negotiate withsolicit or encourage (including by way of providing confidential or non-public information) any inquiries, provide proposals or offers that constitute or may reasonably be expected to lead to any nonpublic information regarding the Company’s business, purchase of shares or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all Equity Securities of the equity interests Company or material portion of the assets of the Company, whether by Company and its Subsidiaries (on a consolidated basis) or any merger, sale of stock, sale of assets, business combination or otherwise other similar transaction of the Company or its Subsidiaries (an “Alternative TransactionTransaction Proposal”), (Bii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement regardingor deliver any agreement or instrument (including a confidentiality agreement, continue letter of intent, term sheet, indication of interest, indicative proposal or otherwise participate in any discussions regarding, other agreement or furnish instrument) related to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Proposal; provided that (Cx) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect agrees to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If notify SPAC if the Company or any of its Representatives receives or Subsidiaries receive any inquiry offer or proposal with communication in respect to of an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalProposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalpromptly communicate to SPAC in reasonable detail the terms and substance thereof, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by and the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Representatives and Representatives Subsidiaries to, immediately cease any and all existing negotiations or discussions or negotiations with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1. Notwithstanding anything set forth in this Section 8.03(a) to the contrary, the Company shall be permitted to undertake the Permitted Equity Financing if (and only if), (1) none of the Company, its stockholders Subsidiaries, or its Representatives, prior to November 1, 2021, (x) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that are intended to lead to the Permitted Equity Financing or (y) engage or participate in any discussions, negotiations or transactions with any third party regarding the Permitted Equity Financing or that are intended to lead to the Permitted Equity Financing, (2) the Company (x) notifies SPAC promptly (and their respective affiliates in any event within twenty-four (24) hours) after the Company has determined to pursue the Permitted Equity Financing or potential Permitted Equity Financing, (y) keeps SPAC reasonably informed on a prompt and timely basis of the status, discussions, negotiations and terms (including any developments, amendments or proposed amendments to such terms) of the Permitted Equity Financing or potential Permitted Equity Financing, and (z) consults with SPAC in respect of the Permitted Equity Financing or potential Permitted Equity Financing, and (3) each Person that receives Equity Securities in connection with the Permitted Financing shall enter into an agreement substantially in the form of the Company Shareholder Lock-Up and Support Agreement (excluding Article VI therein), which shall also contain a customary voting provision in which such Person agrees to vote (whether at a meeting or by written consent) all of the Equity Securities owned by such Person in favor and support of the Transactions, including the Company Transaction Proposals.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the Company) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, regarding a Business Combination SPAC Alternative Transaction Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Silver Crest Acquisition Corp), Merger Agreement (Silver Crest Acquisition Corp)
Exclusivity. (a) From Except as set forth on Schedule 9.03(a), during the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and Buyer or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning: (i) any merger, consolidation, share exchange, business combination, or other similar transaction; (ii) any sale lease, exchange, transfer or other disposition of all or substantially all a material portion of the equity interests or assets of the CompanyCompany or its Subsidiaries or any capital stock or other equity interests of the Company or its Subsidiaries in a single transaction or series of transactions; or (iii) any purchase, whether lease, exchange, transfer or other acquisition of (A) all or a material portion of the assets of any Person by mergerthe Company or its Subsidiaries or (B) any capital stock or other equity interests of any Person by the Company or its Subsidiaries, sale in each case, in a single transaction or series of stocktransactions (each such acquisition transaction, sale but excluding, for the avoidance of assetsdoubt, business combination or otherwise (the Transactions, an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.03(a). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or that is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Buyer shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or shareholders or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). BCAC Buyer shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which that is reasonably likely to give rise to or result in, a Business Combination Proposal.
(c) Each of Buyer and the Company acknowledges and agrees that, for purposes of determining whether a breach of this Section 9.03 has occurred, the actions of each Party’s respective Affiliates and Representatives shall be deemed to be the actions of such Party, and each Party shall be responsible for any breach of this Section 9.03 by any of such Party’s Affiliates or Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Edify Acquisition Corp.), Merger Agreement (Unique Logistics International, Inc.)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, no FEMSA Party shall, and each FEMSA Party shall take all action necessary to ensure that none of the Company, any of the Company shall notSubsidiaries or any of their respective Affiliates or representatives shall:
(i) solicit, and shall direct its Representatives not toinitiate, directly consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the equity interests capital stock of the Company or any of the Company Subsidiaries or assets of the CompanyCompany or any of the Company Subsidiaries, whether by merger, sale other than inventory to be sold in the ordinary course of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)consistent with past practice, (B) to enter into any agreement regardingmerger, continue consolidation or other business combination relating to the Company or any of the Company Subsidiaries or (C) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any of the Company Subsidiaries (each, an “Acquisition Proposal”); or
(ii) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. FEMSA immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing.
(b) FEMSA shall notify Heineken promptly, but in any event within 24 hours, orally and in writing if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. The Company also agrees that it will promptly request each person (Any such notice to Heineken shall indicate in reasonable detail the identity of the Person making such proposal, offer, inquiry or other than contact and the parties hereto terms and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsconditions of such proposal, his offer, inquiry or her consideration of acquiring other contact. FEMSA shall not, and shall cause the Company and each of the Company Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement to return which the FEMSA or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after Subsidiaries is a party, without the Company become aware prior written consent of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Heineken.
(bc) From and after Between the date hereof until of this Agreement and the Effective Time or, if earlier, earlier of the Closing and the termination of this Agreement, BCAC FEMSA shall not takerelease any other party from the terms of the individual confidentiality agreements which FEMSA has signed in connection with the sale of FEMSA Empire or any similar transaction involving the FEMSA Cerveza business, nor including any transaction that would be an Alternative Acquisition Proposal or otherwise. FEMSA’s obligation to enforce the terms of such confidentiality agreements shall it permit include enforcement, if applicable, of specific confidentiality provisions prohibiting such parties from making any of its affiliates or Representatives public statements with regard to takesuch transactions, whether directly or indirectly, taking any action with might force FEMSA to solicit, initiate, continue make a public statement or engage engaging in discussions any form of solicitation of proxies or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence consents with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalvoting securities of FEMSA.
Appears in 2 contracts
Sources: Share Exchange Agreement, Share Exchange Agreement (Mexican Economic Development Inc)
Exclusivity. (a) From the date of this Agreement and ending on Execution Date until the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with Section 9.1, the Company and its Affiliates shall not, and shall direct its Representatives cause their Subsidiaries and their respective representatives not to, directly or indirectly, (Ai) solicit, negotiate withinitiate or take any action to knowingly facilitate or encourage any inquiries or the making, provide any nonpublic information regarding the Company’s business, submission or enter into any Contract with, or in any manner knowingly encourageannouncement of, any proposal of, or offer from any person (Person or group of Persons other than BCAC EQV and its affiliatesthe Sponsor (and their respective representatives, acting in their capacity as such) relating (a “Competing Buyer”) that may constitute, or would reasonably be expected to lead to, a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Competing Transaction; (an “Alternative Transaction”), (Bii) enter into any agreement regardinginto, participate in, continue or otherwise participate in engage in, any discussions regardingor negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual data room) any information relating to any Group Company or any of their assets or businesses, or furnish afford access to the assets, business, properties, books or records of any person any information Group Company to a Competing Buyer, in all cases for the purpose of assisting with respect toor facilitating, or cooperate in any way that would otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Alternative Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (Cincluding any letter of intent or term sheet) commence, continue relating to a Competing Transaction or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect publicly announce an intention to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05do so.
(b) From and after the date hereof Execution Date, until the Effective Time or, if earlier, earlier of the Closing or the termination of this AgreementAgreement in accordance with Section 9.1, BCAC the EQV Parties, the Sponsor and their respective Affiliates shall not, and shall cause their respective representatives not taketo, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, (i) solicit, initiate or take any action to solicitknowingly facilitate or encourage any inquiries or the making, initiatesubmission or announcement of, any proposal or offer from any of the EQV Parties, the Sponsor, any Person or group of Persons other than the Company and the Company Unitholders that may constitute, or would reasonably be expected to lead to, a EQV Party Competing Transaction; (ii) enter into, participate in, continue or otherwise engage in in, any discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or regarding a EQV Party Competing Transaction; (iii) commence due diligence with respect to any Person, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a EQV Party Competing Transaction; (iv) approve, endorse or recommend any person EQV Party Competing Transaction; or (other than the Companyv) enter into a EQV Party Competing Transaction or any agreement, its stockholders and/or arrangement or understanding (including any letter of their affiliates intent or Representatives), concerning, term sheet) relating to a EQV Party Competing Transaction or which is intended or is reasonably likely publicly announce an intention to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposaldo so.
Appears in 2 contracts
Sources: Business Combination Agreement (EQV Ventures Acquisition Corp.), Business Combination Agreement (EQV Ventures Acquisition Corp.)
Exclusivity. (a) From The Company and the date of this Agreement Seller grant to Buyer the exclusive right to acquire the Shares until the Final Termination Date. The Company shall not and ending on shall cause its Subsidiaries not to, and the earlier of (i) the Closing and (ii) the termination of this Agreement, Seller shall cause the Company shall not, and shall direct its Representatives Subsidiaries not to, directly or indirectly, indirectly (Aa) solicit, negotiate with, provide initiate or encourage the submission of any nonpublic information regarding proposal or offer from any Person relating to the Company’s businessacquisition of the Shares or any capital stock or other voting securities, or enter into any Contract with, or in any manner knowingly encourage, any proposal substantial portion of the assets of, the Company or any person of its Subsidiaries (other than BCAC and its affiliates) relating to including any acquisition structured as a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination consolidation or otherwise share exchange) or (an “Alternative Transaction”), (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person furnishing any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead todo or seek any of the foregoing. The Seller will notify Buyer immediately if any Person makes any proposal, offer, inquiry or contact with respect to any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing and the Transaction Documents Seller shall provide copies and disclose the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterms thereof to Buyer, and shall direct its Representatives to, immediately cease any and cause to be terminated and shall use its reasonable best efforts to cause all Company/Seller Representatives to immediately terminate and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalPersons. Without limiting the foregoing, the parties agree it is agreed that any violation of the restrictions set forth in this Section 7.05(a) above by any Affiliate of the Company Company, its Subsidiaries or the Seller or any of their Representatives, whether or not such Person is purporting to act on behalf of the Company, any of its Representatives Subsidiaries or the Seller, shall be deemed to be a breach of this Section 7.05(a) 5.6 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates Subsidiary or Representatives)the Seller, concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalas applicable.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Homeland Security Capital CORP), Stock Purchase Agreement (DJSP Enterprises, Inc.)
Exclusivity. The Company shall, and shall use its reasonable best efforts to cause its Affiliates and its and their respective Representatives to immediately cease (a) From the date of any and all discussions or negotiations with any Person (other than Parent and its Affiliates and its and their respective Representatives) regarding a Competing Transaction, (b) furnishing to any Person (other than Parent and its Affiliates and its and their respective Representatives) any information with respect to a Competing Transaction and (c) cooperating with, assisting in, participating in, facilitating or encouraging a Competing Transaction. Until such time, if any, as this Agreement and ending on is terminated pursuant to the earlier of (i) the Closing and (ii) the termination of this Agreementterms hereof, the Company agrees that it shall not, and shall direct use its reasonable best efforts to cause its Affiliates and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (Ai) initiate, solicit, negotiate withknowingly encourage or otherwise facilitate any inquiries or the making of an offer or proposal regarding any Competing Transaction, provide (ii) engage in any nonpublic information regarding the Company’s businessnegotiations concerning, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person agreement (other than BCAC and an agreement with its affiliates) relating to a potential acquisition of all Subsidiaries or substantially all of the equity interests its or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior regarding a Competing Transaction or otherwise knowingly facilitate a Competing Transaction or (iii) except as described in the immediately following sentence, file any amendments to or make any other filing with the Commission with respect to the date hereof executed a confidentiality agreement in connection Registration Statement, including any public or publicly available correspondence with itsrespect thereto, his or her consideration request that the Registration Statement (or the prospectus contained therein) be declared effective by the Commission or make any public announcements with respect to an initial public offering of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries, notwithstanding the fact that any inquiry such failure to file or proposal with respect to an Alternative Transaction at any time prior to other inaction may result in the ClosingRegistration Statement (or the prospectus contained therein) being deemed stale by the Commission. Promptly after the date of this Agreement, then the Company shall promptly (and in no event later than one (1) Business Day after file a Registration Withdrawal Request on Form RW with the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement Commission with respect to the sale of the Company that prohibits it from considering such inquiry or proposalRegistration Statement and, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be if deemed to be a breach of this Section 7.05(a) advisable by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(make a “Business Combination Proposal”) other than filing with the Company, its stockholders Commission on Form 8-K and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than appropriate filings with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalCommission in connection therewith.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms or the Closing, the Company Seller shall not, and shall direct its not permit or cause any of their respective Affiliates, officers, managers, members, directors, employees, investment bankers, consultants, advisors, other agents and Representatives not to(collectively, “Seller Representatives”), to directly or indirectly, (a) sell or otherwise transfer any equity interests in the Company, all or a material portion of the assets or the properties (including the Property) of the Company (other than inventory in the Ordinary Course of Business), or enter into any agreement to sell or otherwise transfer such an equity interest or all or a material portion of such assets or properties, (b) take any action to solicit, initiate, entertain, negotiate, accept or discuss, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating or offer to a potential acquisition of acquire all or substantially all any significant part of the equity interests Company or assets any of the Companyits assets, whether by merger, sale of stockequity interests, joint venture, business combination, sale of assetsassets or real estate or a sale-leaseback, business combination reorganization, recapitalization, share exchange, liquidation, dissolution or otherwise (each, an “Alternative TransactionAcquisition Proposal”), (Bc) enter into disclose or provide any agreement regardingnonpublic information relating to the Company (including this Agreement) in connection with an Acquisition Proposal, continue (d) afford access to a transaction data room, the properties, books or otherwise participate in records of the Company to any discussions regardingthird party that has made or is reasonably believed by Seller to be contemplating any Acquisition Proposal, or furnish to (e) otherwise cooperate with, or knowingly assist or participate in, or knowingly facilitate or encourage any person effort or attempt by any information Person (other than Acquirors or its respective Representatives) with respect to, or cooperate in any way that which would otherwise reasonably be expected likely to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions an Acquisition Proposal. Seller shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Seller Representatives to promptly cease and Representatives tocause to be terminated all discussions and negotiations, immediately cease any and all existing discussions or negotiations with any person (other than with the Companyif any, its stockholders and their respective affiliates and Representatives) conducted which have taken place prior to the date hereof with respect toto any Acquisition Proposal. Notwithstanding anything herein to the contrary, if Seller, any of its Subsidiaries or which is reasonably likely any of their respective representatives receives an inquiry, proposal or offer from any Person or group relating to give rise any transaction other than an Acquisition Proposal, including a sale, purchase, merger, consolidation, combination or other transaction involving Seller or any of its Subsidiaries (other than the Company) (a “Separate Proposal”), then Seller, any of its Subsidiaries (including the Company) and any of the representatives of any of the foregoing, as applicable, may (i) furnish any information and other access to any Person making such Separate Proposal and any of its representatives, (ii) engage in discussions or result in, a Business Combination negotiations with any Person making such Separate Proposal and any of its representatives or (iii) enter into any transaction relating to such Separate Proposal.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Golden Entertainment, Inc.), Equity Purchase Agreement
Exclusivity. (a) From During the date Interim Period, neither DLQ Parent nor any member of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notGroup, shall, and such Persons shall direct its cause each of their respective Representatives not to, without the prior written consent of Parent (which consent may be withheld in the sole and absolute discretion of Parent), directly or indirectly, (Ai) encourage, solicit, negotiate withinitiate, provide engage or participate in negotiations with any nonpublic information regarding Person concerning any Alternative Transaction, (ii) take any other action intended or designed to facilitate the Company’s businessefforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into any Contract withAlternative Transaction or any contract or agreement related to any Alternative Transaction (a “Company Acquisition Agreement”). Immediately following the execution of this Agreement, DLQ Parent and the Company Group, shall, and shall cause each of its Representatives, to terminate any existing discussion or negotiations with any Persons other than Parent, concerning any Alternative Transaction. Each of DLQ Parent and the Company shall be responsible for any acts or omissions of any of its respective Representatives that, if they were the acts or omissions of DLQ Parent or the Company, would be deemed a breach of such party’s obligations under this Section 6.2(a) (it being understood that such responsibility shall be in addition to and not by way of limitation of any manner knowingly encourageright the Parent may have against such Representatives with respect to any such acts or omissions). For purposes of this Agreement, the term “Alternative Transaction” means any proposal of, any person of the following transactions involving DLQ Parent or the Company or their respective Subsidiaries (other than BCAC and its affiliatesthe transactions contemplated by this Agreement or the Additional Agreements): (A) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by any merger, sale of stockconsolidation, sale of assetsshare exchange, business combination or otherwise other similar transaction (an “Alternative Transaction”other than between or among such party and/or its wholly-owned Subsidiaries), (B) enter into any agreement regardingsale, continue lease, exchange, transfer or otherwise participate other disposition of all or a material portion of the assets of such Person or any material portion of the capital stock or other equity interests of such party or its Subsidiaries in any discussions regardinga single transaction or series of transactions, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale Company, any purchase, lease, exchange, transfer or other acquisition of (1) all or a material portion of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy assets of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) Person by the Company or its Representatives shall be deemed to be a breach (2) any capital stock or other equity interests of this Section 7.05(a) any Person by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction in each case, in a single transaction or series of the terms of this Section 7.05transactions.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Logiq, Inc.), Merger Agreement (Abri SPAC I, Inc.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on until the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, the Company Sellers shall not, and shall direct its Representatives not permit any of their Controlled Affiliates (including the Transferred Subsidiaries) or their respective officers, directors, employees, partners, members, managers, equityholders, agents, advisors or other representatives (“Representatives”) to, (a) directly or indirectly, (A) solicit, negotiate with, provide encourage or initiate any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any third party to lead to, any Alternative Transaction do or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or seek any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, or (c) furnish any information regarding the parties agree Business to any third party (except the furnishing of information to customers, suppliers, licensors, licensees, distributors and others that any violation have a business relationship with the Business in the Ordinary Course of Business consistent with past practice for purposes of facilitating the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the CompanyBusiness’s ordinary business activities). For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and Promptly after the date hereof until the Effective Time or, if earlier, the termination execution of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Sellers shall, and shall cause its affiliates their Controlled Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing solicitations, discussions or negotiations with any person (other than third party that may be ongoing with respect to any Acquisition Proposal and shall request each third party that has been provided by or on behalf of Sellers or their Controlled Affiliates any confidential information regarding the CompanyBusiness and the Transferred Subsidiaries in connection with considering an Acquisition Proposal to return or destroy all such confidential information. In the event that Sellers or any of their Controlled Affiliates or Representatives receives an inquiry, its stockholders proposal or offer with respect to an Acquisition Proposal on or after the date hereof and their respective affiliates and Representatives) conducted prior to the date hereof Closing, Sellers will provide Buyer with respect to, or which is reasonably likely to give rise to or result in, a prompt (and in any event within one (1) Business Combination ProposalDay) notice thereof.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Exclusivity. Prior to the Closing Date the Company will refrain, and cause its Affiliates, officers, directors, employees, agents and other representatives (aincluding without limitation any brokers, legal counsel, accountants, or financial advisors of the Company) From the date of this Agreement and ending on the earlier of to refrain, from directly or indirectly (x) making any offer or proposal to any Person or entering into any contract with any Person to (i) sell, issue or otherwise transfer any capital stock of the Closing Company (other than pursuant to equity plans of the Company in effect on the date hereof (without giving effect to any amendment thereof after the date hereof)) (the "Existing Equity Plans") to officers, directors and employees of the Company and its Subsidiaries); or (ii) sell or otherwise transfer any material assets or properties of the termination Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; (y) entertaining, soliciting, encouraging, accepting, negotiating or otherwise holding substantive discussions (and shall immediately cease any such actions currently underway with any Persons other than the Purchasers) regarding any offer or proposal from any Person to (i) purchase or otherwise acquire any of the capital stock of the Company; or (ii) sell or otherwise transfer any material assets or properties of the Company; or (iii) effect any recapitalization, refinancing, restructuring, merger, consolidation, or other business combination involving the Company; or (z) providing any non-public information regarding the Company to any Person in connection with a transaction of the type described in subsections (i), (ii) and (iii) above; provided that notwithstanding anything to the contrary in this AgreementSection 6.6, the Company shall notmay consider, negotiate, approve and shall direct its Representatives not torecommend to the Shareholders of the Company any unsolicited offers or proposals for an acquisition, directly by merger, amalgamation consolidation, tender offer or indirectlyotherwise, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests assets or assets outstanding Common Shares of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Company (an “Alternative Transaction”"Unsolicited Proposal"), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, further, that unless this Agreement is terminated pursuant to Section 9.1, no such actions shall affect the execution, delivery and performance obligations of the Company under this Agreement (including without limitation the obligation of the Board of Directors of the Company to recommend to the shareholders of the Company the consummation of the transactions contemplated by this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(aother Operative Documents). The Company shallFurther, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsany Unsolicited Proposal, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Affiliate thereof, may enter into a confidentiality agreement with, and provide any inquiry non-public information regarding the Company to, any Person in connection with any such Unsolicited Proposal. If any such offer or proposal with respect is made to an Alternative Transaction at or received from any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityPerson, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction will promptly advise such Person by written notice of the terms of this Section 7.05.
(b) From 6.6 and after the date hereof until the Effective Time or, if earlier, the termination will promptly deliver a copy of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior such notice to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalPurchasers.
Appears in 2 contracts
Sources: Share Purchase Agreement (Pxre Group LTD), Share Purchase Agreement (Pxre Group LTD)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier to occur of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to Article 8 and the Closing Date, the Company Seller shall not, and shall direct its Representatives not to, directly or indirectlyindirectly (including indirectly through its Representatives), (Aa) solicit, negotiate withinitiate, provide knowingly encourage or induce or take any nonpublic information regarding the Company’s business, or enter into any Contract with, or other action to in any manner way knowingly encourage, facilitate any inquiries or the making of any proposal of, any person that constitutes or would reasonably be expected to lead to (other than BCAC and its affiliatesincluding by way of furnishing information or assistance) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (Bb) enter into any agreement regarding, continue engage in or otherwise participate in any negotiations or discussions regardingwith any Person (other than any Governmental Authority) concerning, or furnish to any person provide any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead with, any Person relating to, any Alternative Competing Transaction or (Cc) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives agree to, approve or recommend any contract (written or oral), agreement in principle, letter of intent, term sheet or other similar instrument relating to any Competing Transaction. Seller shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person of the foregoing (other than any such discussions with any Governmental Authority) and shall use its Commercially Reasonable Efforts to cause any such party in possession of confidential information about Seller that was furnished by or on behalf of Seller in connection with the parties hereto and their respective Representatives) that has sale process conducted by Seller prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring respect to the Company Purchased Assets to return or destroy all Confidential Information furnished such information. Seller acknowledges and agrees that any remedy at law for breach of the foregoing covenant may be inadequate and, in addition to such person by any other relief which may be available, Purchaser shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving actual damages, posting bond or on behalf providing surety, and without regard to the adequacy of itany remedy at Law. Seller represents and warrants that, him or her prior to as of the date hereof. If the Company , (x) it is not engaged in discussions or negotiations with any party other than Purchaser or any of its Representatives receives any inquiry or proposal Governmental Authority with respect to an Alternative Transaction at any time prior to of the Closingforegoing, then the Company shall promptly (and in y) there is no event later than one stand-by or back-up contract (1) Business Day after the Company become aware of such inquiry written or proposal) notify such person in writing that the Company is subject to an exclusivity oral), agreement or other understanding with respect to the sale of the Company that prohibits it from considering such inquiry or proposalPurchased Assets, and will provide BCAC (z) it has terminated all discussions with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the third parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”Governmental Authorities) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalsuch proposed matters.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Exclusivity. (a) From Between the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this AgreementAgreement pursuant to Section 8.1, none of the Warrantors and the Company or any of their respective Affiliates, officers, directors, representatives or agents shall, and the Warrantors and the Company shall notcause the other Group Companies and their respective Affiliates, officers, directors, representatives and shall direct its Representatives agents not to, directly (i) solicit, initiate, consider, encourage or indirectly, accept any other proposals or offers from any Person (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential any acquisition or purchase of all or substantially all any portion of the equity interests in the Company or any other Group Company or all or any material portion of the assets of the CompanyGroup Companies, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) to enter into any agreement regardingmerger, continue consolidation, business combination, recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any Group Company, or (ii) participate in any discussions discussions, conversations, negotiations and other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. The Warrantors and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives cause the other Group Companies to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto Warrantors and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return shall notify the Purchaser promptly if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at thereto, is made and shall, in any time prior such notice to the ClosingPurchaser, then the Company shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting The Warrantors and the foregoingCompany agree not to, and to cause the parties agree that any violation other Group Companies not to, without the prior written consent of the restrictions set forth in this Section 7.05(a) by the Company Purchaser, release any Person from, or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform waive any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectlyprovision of, any action confidentiality or standstill agreement to solicit, initiate, continue which any Warrantor or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which Group Company is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalparty.
Appears in 2 contracts
Sources: Share Purchase Agreement (NetEase, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Exclusivity. (a) From the date Except as otherwise consented to by Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) or in connection with a merger, consolidation or sale of substantially all of Seller’s business (a “Seller Change of Control”) (provided, that in connection with a Seller Change of Control, Seller shall cause this Agreement and ending on the earlier to be contractually assumed or assumed by operation of (i) law), Seller agrees that prior to the Closing and (ii) or, if applicable, the termination of this Agreementthe Agreement in accordance with its terms), the Company Seller shall not, and shall direct take all action necessary to ensure that none of its subsidiaries or any of their respective Representatives shall, and shall not authorize its subsidiaries or any of their respective Representatives to, directly or indirectly, :
(Ai) solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) Person relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the equity interests Specified Business or assets of the CompanyPurchased Assets, whether effected by mergersale of assets, sale of stock, sale of assetsmerger or otherwise, business combination or otherwise other than (an “Alternative Transaction”)i) as expressly permitted by Section 5.1, (Bii) enter into any agreement regarding, continue inventory of the Products sold or otherwise disposed of in the ordinary course of business or (iii) non-exclusive licenses granted to Third Party service providers of Seller or its subsidiaries in connection with provision of services in the ordinary course of business; or
(ii) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, knowingly facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions foregoing. Seller immediately shall not cease and cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From Seller shall notify Purchaser promptly, but in any event within two Business Days, orally and after the date hereof until the Effective Time or, in writing if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates such proposal or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withoffer, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence inquiry with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof same, with respect to, to the Specified Business or which Purchased Assets is reasonably likely made. Any such notice to give rise to Purchaser shall indicate in reasonable detail the terms and conditions of such proposal offer or result in, a Business Combination Proposalinquiry.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Travere Therapeutics, Inc.), Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time orearlier of (a) the Closing Date, if earlier, and (b) the termination of this AgreementAgreement pursuant to Article IX (the "Exclusivity Period"), BCAC the Company and any Affiliate, officer, director, agent, or representative of the Company shall not takenot, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly: (i) enter into any written or oral agreement or understanding with any Person (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding Another Transaction (as defined below); (ii) initiate or continue any negotiations or discussions with any person or entity (other than the Purchasers and other Persons acceptable to the Purchasers Representative) regarding the possibility of Another Transaction; (iii) submit, any action to solicit, initiate, continue or engage in discussions or negotiations withencourage, participate in, or enter into facilitate any agreement withproposal or offer regarding Another Transaction; or (iv) except as otherwise required by law, provide any non-public financial or other confidential or proprietary information regarding the transactions contemplated hereby to any Person (other than to the Purchasers and other Persons acceptable to the Purchasers Representative) whom the Company knows, or encouragehas reason to believe, respondwould have any interest in participating in Another Transaction. As used herein, provide information "Another Transaction" means any issuance, sale, exchange, merger, combination, consolidation, recapitalization, or similar transaction involving any of the capital stock, equity interests, long-term debt arrangements, assets or business of the Company (other than sales of inventory in the ordinary course of business). Another Transaction shall be deemed to include the sale of either the Company's Portland operations or commence due diligence with respect to, the Company's Florida operations (a "Division Sale") even if one Person or group of related Persons does not purchase both operations. The Company shall notify the Purchasers Representative in writing immediately if after the date hereof any person Person (other than the CompanyPurchasers and other Persons acceptable to the Purchasers Representative) makes any proposal, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiryinquiry or makes or has any contact in respect to Another Transaction or a Division Sale. The parties hereto acknowledge that the Purchasers would be irreparably injured by a breach of this Section 5.5 and agree that the Purchasers Representative on behalf of all or some of the Purchasers shall be entitled, proposal or indication of interest, written or oral relating in addition to any business combination transaction
(other rights or remedies the Purchasers may have under law or by agreement, to equitable relief, including injunctive relief, in the event of a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representativesbreach of this Section 5.5. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.ARTICLE VI
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Williams Controls Inc), Series B Preferred Stock Purchase Agreement (Williams Controls Inc)
Exclusivity. (a) From During the date Interim Period, PGHL shall not take, nor shall it permit any of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementits Affiliates or Representatives to take, the Company shall not, and shall direct its Representatives not to, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and FTAC and/or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any purchase of all or substantially all a material portion of PGHL’s equity securities or the issuance and sale of any securities of, or membership interests in, PGHL or its Subsidiaries (other than any purchases of equity interests securities by PGHL from employees of PGHL or its Subsidiaries) or any merger or sale of substantial assets involving PGHL or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business or transactions permitted by Section 7.01(d) (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company PGHL shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC FTAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the CompanyPGHL, its stockholders shareholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the CompanyPGHL, its stockholders shareholders and their respective affiliates Affiliates and Representatives. BCAC FTAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Foley Trasimene Acquisition II), Merger Agreement
Exclusivity. (a) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement or the Closing, the Company shall not, and shall direct cause its Representatives officers, directors, Affiliates, managers, consultant, employees, representatives and agents (“Representatives”) not to, directly or indirectly, (Ai) encourage, solicit, negotiate withinitiate, provide engage or participate in negotiations with any nonpublic information regarding Person concerning any Alternative Transaction, (ii) take any other action intended or designed to facilitate the Company’s businessefforts of any Person relating to a possible Alternative Transaction or (iii) approve, recommend or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding Contract related to any Alternative Transaction; provided, that . Immediately following the execution, delivery and performance execution of this Agreement and Agreement, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause each of its Representatives toRepresentatives, to immediately cease terminate any and all existing discussions discussion or negotiations with any person conducted heretofore with respect to Persons other than Parent and Sponsor concerning any Alternative Transaction. The Company also agrees shall be responsible for any acts or omissions of any of its respective Representatives that, if they were the acts or omissions of the Company, would be deemed a breach of its obligations hereunder (it being understood that it will promptly request each person such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against such Representatives with respect to any such acts or omissions). For purposes of this Agreement, the term “Alternative Transaction” means any of the following transactions involving the Company (other than the parties hereto and their respective Representativestransactions contemplated by this Agreement): (A) that has prior to any merger, consolidation, share exchange, business combination or other similar transaction or (B) any sale, lease, exchange, transfer or other disposition of all or a material portion of the date hereof executed a confidentiality agreement in connection with its, his or her consideration assets of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives Subsidiaries (other than sales of inventory in the ordinary course of business) or any class or series of the capital stock or other equity interests of the Company, in a single transaction or series of transactions. In the event that there is an unsolicited inquiry or proposal with respect to proposal, or an indication of interest by any Person (other than Parent or any of its Representatives) in entering into, an Alternative Transaction at any time prior Transaction, communicated in writing to the ClosingCompany or any of its respective Representatives (each, then an “Alternative Proposal”), the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person Person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Altitude Acquisition Corp.), Business Combination Agreement (Altitude Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and and/or (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or Exchange Act, concerning (1) any sale of assets of the Company, whether by (2) the issuance or acquisition of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities of the Company, or (3) any conversion, consolidation, merger, sale of stockliquidation, sale of assets, business combination dissolution or otherwise similar transaction (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Transaction, or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him him, or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC GigCapital5 with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC GigCapital5 shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC GigCapital5 shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Business Combination Agreement (Qt Imaging Holdings, Inc.), Business Combination Agreement (GigCapital5, Inc.)
Exclusivity. (a) From the date of this Agreement The Company and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company its Affiliates shall not, and shall direct its cause the Company Subsidiaries and their respective Representatives not to, directly or indirectly, (Aa) (i) solicit, negotiate with(ii) initiate, provide any nonpublic information regarding the Company’s business(iii) knowingly encourage or assist, or enter into any Contract with, or in any manner knowingly encourage, (iv) respond to the submission of any proposal ofor offer from any third-party relating, with respect to the Company or any person of the Company Subsidiaries, to any (other than BCAC and its affiliatesw) relating to a potential liquidation, dissolution or recapitalization, (x) merger or consolidation, (y) acquisition or purchase of all or substantially all a significant portion of the assets of, or any equity interests interest in, the Company or assets any of the Company, whether by merger, sale of stock, sale of assets, Company Subsidiaries or (z) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), nor (Bb) enter into any agreement regarding, continue or otherwise participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person other third-party any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, or knowingly facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or nor (Cc) commenceenter into any agreement with respect to a Competing Transaction, continue or renew any due diligence investigation regarding any Alternative Transaction; providedexcept, that in the executioncases of clauses (a)(iv) (and clause (a)(iii) to the extent an action described in clause (a)(iv) would also constitute an action described in clause (a)(iii)) and (b), delivery and performance of this Agreement and to the Transaction Documents and extent failure to do so would be inconsistent with the consummation fiduciary duties of the Transactions board of directors of the Company under applicable Law. Any information described in the foregoing clause shall not only be deemed provided pursuant to a violation of this Section 7.05(a)confidentiality agreement with confidentiality provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement. The Company shall, and shall direct instruct all Representatives acting on its Representatives to, and its Affiliates’ behalf to immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing. The As soon as reasonably practicable after the date hereof, the Company also agrees that it will promptly request shall instruct each person Person (other than Parent and the parties hereto Merger Subs and their respective Representativesrepresentatives) in possession of confidential information about the Company that has prior was furnished pursuant to the date hereof executed a confidentiality agreement within the prior twelve (12) months in connection with its, his any actual or her consideration of acquiring potential proposal by such Person to acquire the Company (or any portion thereof) to promptly return or destroy all Confidential Information furnished to such person by or on behalf of itinformation, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such confidentiality agreement.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (Fidelity National Information Services, Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC Purchaser shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or continue, engage in or facilitate discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide any information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders shareholders and/or any of their affiliates controlled Affiliates or Representatives), concerning, relating to or which is intended or is could reasonably be likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Purchaser Business Combination Proposal”) other than with the Company, its stockholders and equityholders or their respective affiliates and Representativescontrolled Affiliates. BCAC Purchaser shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Purchaser Business Combination Proposal. Purchaser shall promptly (but in no event later than twenty-four (24) hours after becoming aware of any Purchaser Business Combination proposal) notify the Company of any Purchaser Business Combination Proposal following Purchaser’s awareness thereof and shall provide a copy of such Purchaser Business Combination Proposal if in writing or otherwise provide a detailed summary of the material terms of such Purchaser Business Combination Proposal to the Company.
(b) During the Interim Period, the Company shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue, engage in or facilitate discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide any information to or commence due diligence with respect to, any Person (other than Purchaser, its shareholders and/or any of their controlled Affiliates or Representatives), concerning, relating to or which is intended or could reasonably be likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any (i) reorganization, liquidation, dissolution, share exchange or recapitalization (excluding a recapitalization funded with the proceeds of debt financing), (ii) merger or consolidation involving the Company or any of its Subsidiaries, (iii) sale of all or substantially all of the Company’s or its Subsidiaries’ assets (other than securitization transactions and other sales of assets in the ordinary course of business) or equity interests (or any rights to acquire, or securities convertible into or exchangeable for, any such equity interests) or (iv) similar transaction or business combination involving the Company or any of its Subsidiaries or its or their business or assets (a “Company Business Combination Proposal”), in each case other than (A) with Purchaser, its equityholders or their respective controlled Affiliates or (B) as otherwise contemplated or permitted by this Agreement (including in connection with the Pre-Closing Reorganization or as permitted under Section 8.01). The Company shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Company Business Combination Proposal. The Company shall promptly (but in no event later than twenty-four (24) hours after becoming aware of any Company Business Combination proposal) notify Purchaser of any Company Business Combination Proposal following the Company’s awareness thereof and shall provide a copy of such Company Business Combination Proposal if in writing or otherwise provide a detailed summary of the material terms of such Company Business Combination Proposal to Purchaser.
Appears in 2 contracts
Sources: Transaction Agreement (Replay Acquisition LLC), Transaction Agreement (Replay Acquisition Corp.)
Exclusivity. (a) From Until the date of this Agreement and ending on Closing or the earlier of (i) the Closing and (ii) the termination of this Agreement, Seller agrees that neither it nor any of its Affiliates nor any of the Company shall notmanagers and officers of Seller or its Affiliates shall, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any inquiries or the making of any proposal or offer with respect to: (i) a merger, recapitalization, consolidation, business combination or other similar transaction involving Seller or any material portion of, the Business or the Acquired Assets; (ii) a purchase of Seller, the Business or substantially all of the Acquired Assets; (iii) a sale or disposition of all or any material portion of Seller, the Business or substantially all of the Acquired Assets; or (iv) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of Seller (any such proposal or offer, an “Acquisition Proposal”). Until the Closing or the earlier termination of this Agreement, Seller and shall direct its Representatives not tothe Seller Principals further agree that neither they nor any of their managers, officers, employees, agents or representatives shall, directly or indirectly, (Ax) solicitengage in any negotiations concerning, negotiate or provide any confidential information or data to, or have any discussions with, provide any nonpublic information regarding the Company’s businessPerson relating to an Acquisition Proposal, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (By) enter into any agreement, arrangement, understanding or other contract, agreement regardingor understanding with any Person requiring Seller or any Seller Principal to abandon, continue terminate or otherwise participate in fail to consummate any discussions regarding, of the transactions contemplated hereby or furnish to by any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions Documents. Seller shall not be deemed a violation of this Section 7.05(a). The Company promptly notify Buyer if Seller shall, and shall direct its Representatives toon or after the date hereof, immediately cease have received an Acquisition Proposal or any and all existing discussions request for information or negotiations access in connection with a possible Acquisition Proposal involving any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person or group (other than an Affiliate of Buyer), including the parties hereto nature and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware terms of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry Person or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05group.
(b) From and after Until the date hereof until Closing or the Effective Time or, if earlier, the earlier termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Seller shall, and shall cause its affiliates and Representatives representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any person (Person other than with the Company, its stockholders and their respective affiliates and Representatives) Buyer conducted prior to the date hereof with respect to any Acquisition Proposal (other than, but solely limited to, discussions necessary to ensure return or which is reasonably likely to give rise to or result in, a Business Combination Proposaldestruction of all confidential information of Seller).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alkami Technology, Inc.), Asset Purchase Agreement (Alkami Technology, Inc.)
Exclusivity. Neither the Company nor any of its Subsidiaries will, nor will the Company, its Subsidiaries or any Company Shareholder permit any of its or their respective officers, directors, employees, shareholders, Affiliates, representatives, consultants, financial advisors, attorneys, accountants or other agents to, (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding initiate or knowingly encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal of, or offer from any person (other than BCAC and its affiliates) Person relating to a potential the acquisition of all or substantially all of the equity interests capital stock or assets of the Company, whether by Company (including any acquisition structured as a merger, sale of stockconsolidation or share exchange) (collectively, sale of assets, business combination or otherwise (an “Alternative TransactionAcquisition Proposal”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or attempt by any Person to do or seek any of the foregoing. The Company represents and warrants that would otherwise reasonably it has ceased and caused to be expected to lead toterminated any and all contacts, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation discussions and negotiations with third parties regarding any Alternative Transaction; providedAcquisition Proposal(s), that the execution, delivery and performance of this Agreement and the Transaction Documents Company or the Shareholder Representative shall promptly notify Parent if any Acquisition Proposal, or any inquiry or contact with any Person with respect thereto, is made. The Company Shareholders will not vote the Common Shares in favor of any such acquisition structured as a stock sale, merger, consolidation or share exchange, other than the transactions contemplated by this Agreement; provided that, if the Company receives any unsolicited indications of interest or competing bids (whether written or oral, and the consummation Company and its Subsidiaries and each of the Transactions shall their officers, directors, employees, representatives, agents, shareholders and affiliates are not be deemed a in violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease 5.7) to pursue or enter into any and all existing discussions agreements or negotiations with any person conducted heretofore arrangements with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person a possible Acquisition Proposal (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing“Acquisition Proposal Inquiry”), then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalits officers, directors, employees, representatives, agents, shareholders, and will Affiliates) may consider and provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalinformation to, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations negotiate with, or enter into any a definitive agreement withwith such third party, or encourage, respond, provide information to or commence due diligence with respect to, any person as may be required (other than on the opinion of the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”’s outside counsel) other than with by the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior board members’ fiduciary duties to the date hereof with respect toCompany Shareholders; provided further that promptly upon receipt of such Acquisition Proposal Inquiry, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.the
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of Interim Period, (i) JV GmbH and the Closing and (ii) the termination Shareholders shall not take, nor shall they permit any of this Agreementtheir Affiliates or Representatives to take, the Company shall notin each case, and shall direct its Representatives not to, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC PubCo, Merger Sub, SEDA and/or any of their Affiliates and its affiliatesRepresentatives) concerning, relating to or which is intended or is reasonably likely to give rise to or result in any purchase of any equity securities of, or membership interests in, or the issuance and sale of any equity securities of, or membership interests in, PP Holding, JV GmbH or its Subsidiaries (other than any purchases of equity securities by JV GmbH from employees of JV GmbH or its Subsidiaries) or any merger or sale of substantial assets involving the Aerospace Business Assets, PP Holding or JV GmbH or any of its Subsidiaries, in each case, other than the Transactions, a potential acquisition transfer by any Shareholder to any of all its Affiliates, or substantially all of the equity interests as provided in this Agreement (any such purchase, issuance, sale or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”). If JV GmbH, (B) enter into the Shareholders or any of their Affiliates or any of their respective Representatives receives any inquiry or proposal regarding an Acquisition Transaction at any time prior to the Closing, then JV GmbH and the Shareholders, as applicable, shall promptly notify such Person indicating only that it is subject to an exclusivity agreement regarding, continue that prohibits providing any information related to or otherwise participate entertaining any proposals or offers or engaging in any negotiations or discussions regardingconcerning any Acquisition Transaction and, in such event, JV GmbH or furnish to any person any information with respect tosuch Shareholder, or cooperate in any way that would otherwise reasonably be expected to lead toas applicable, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery shall also promptly notify SEDA of such facts and performance of this Agreement circumstances. JV GmbH and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Shareholders shall, and shall direct its cause their Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SEDA shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than JV GmbH, PP Holding, the Company, its stockholders Shareholders and/or any of their affiliates or Affiliates and Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral oral, relating to any business combination transaction
Business Combination other than with JV GmbH, the Shareholders and their respective Affiliates and Representatives (a “Business Combination Proposal”) other than with ). If SEDA or any of its Affiliates or Representatives receives any inquiry or proposal regarding a Business Combination Proposal at any time prior to the CompanyClosing, its stockholders then SEDA shall promptly notify such Person indicating only that it is subject to an exclusivity agreement that prohibits them from providing any information considering such inquiry or proposal and, in such event, SEDA shall also promptly notify JV GmbH and their respective affiliates the Shareholders of such facts and Representativescircumstances. BCAC SEDA shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal. Nothing contained in this Section 11.04(b) shall prohibit SEDA or the SEDA Board or any committee thereof from making any disclosure to the SEDA Shareholders if the SEDA Board determines in good faith, after consultation with its outside legal counsel and/or financial advisors, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law.
Appears in 1 contract
Sources: Business Combination Agreement (SDCL EDGE Acquisition Corp)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement in accordance with its terms, the Company Seller shall not, and shall direct its Representatives not to, directly or indirectly, (A) through any Affiliate, Representative or otherwise, solicit, negotiate with, provide any nonpublic information regarding initiate or encourage the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, submission of any proposal ofor offer from any Person, with respect to any person (other than BCAC and its affiliatesa) relating to a potential direct or indirect merger, equity purchase or consolidation of the Business, (b) acquisition or purchase, directly or indirectly, of all or substantially all of the assets of, or a majority of the equity interests in, the Business or assets of the Company, whether by merger, sale of stock, sale of assets, (c) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any other person or entity any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected with, or facilitate any effort or attempt by any person or entity to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative effect a Competing Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Seller shall, and shall direct its Representatives to, instruct all Persons acting on behalf of it to immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsPromptly, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in any event no event later than one two (12) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after following the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Seller shall, and shall cause its affiliates their respective Affiliates and Representatives to, immediately cease request the prompt return or destruction of all confidential information previously furnished in connection with a potential Competing Transaction to any and all existing Person with whom Seller or any of their respective Affiliates or Representatives has had discussions or negotiations with respect to a Competing Transaction in the last twelve (12) months and shall terminate all physical and electronic dataroom access previously granted to any person (other than with such Person or its Representatives. Nothing in this Section 8.14 shall be deemed to limit the Company, ability of or otherwise prohibit Seller or any of its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof Affiliates from having discussions with respect to, or which is reasonably likely to give rise to otherwise taking actions in connection with, any potential sale or result indisposition of a majority or more of the consolidated assets, a Business Combination Proposalrevenue or income of the Retained Business.
Appears in 1 contract
Sources: Equity Purchase Agreement (Beacon Roofing Supply Inc)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company Parties shall not, and shall direct cause their respective subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any sale of any material assets of such Party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such Party or any of such Party’s subsidiaries other than BCAC with the other Parties and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction, (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction, (iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of the Company Subsidiaries, (v) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (vi) approve, endorse, recommend, execute or enter into any agreement in principle, confidentiality agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that could reasonably be expected to lead to an Alternative Transaction, or (vii) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives acting on its behalf to take any such action; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated by this Agreement, including the Transaction Financing, shall not be deemed a violation of this Section 7.05(a)7.06. The Company Each Party shall, and shall direct cause its subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will promptly request each person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof of this Agreement executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Evaluation Information or Transaction Information (as such terms are defined in the Confidentiality Agreement) furnished to such person by or on behalf of it, him or her it prior to the date hereofof this Agreement (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.06 by the Company a Party or any of its subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.06 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Roth CH Acquisition v Co.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (Ai) enter into, solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)cooperate in any way regarding a Company Acquisition Proposal, (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Company Acquisition Proposal or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative TransactionCompany Acquisition Proposal; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)7.6. The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative TransactionCompany Acquisition Proposal. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the For purposes hereof, “Company or Acquisition Proposal” means any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interestoffer concerning a merger, written consolidation, liquidation, recapitalization, share exchange or oral relating to any other business combination transaction
(a “Business Combination Proposal”) transaction involving the sale, lease, exchange or other than with disposition of all or substantially all of the properties or assets or equity interests of the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Athena Technology Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, but only, in the Company case of the Buyer, except to the extent it determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Buyer Board, the Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” (within the meaning of Section 13(d) of the Exchange Act), concerning any sale of any material assets of such Party or any of the outstanding equity securities or any conversion, consolidation, liquidation, dissolution or similar transaction involving such Party or any of such Party’s Subsidiaries other than BCAC with the other Parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)8.5. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will promptly request each person Person (other than the parties hereto Parties and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person Person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposalbut only, including in each the case the identity of the person making Buyer, except to the extent it determines in good faith, after consultation with its outside legal counsel, that the failure to take such inquiry or proposalaction would be inconsistent with the fiduciary duties of the Buyer Board. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 8.5 by the Company a Party or any of its Subsidiaries or its or their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 8.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Aldel Financial Inc.)
Exclusivity. (a) From During the date of this Agreement Interim Period, the Seller and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall notnot (and the Seller shall cause the Company not to), and none of them shall direct its permit any of their respective Affiliates or Representatives not acting on their behalf to, directly or indirectly, (Aa) solicit, negotiate initiate, seek or encourage any expression of interest, inquiry, offer, or proposal from, (b) initiate or participate in any discussions or negotiations with, provide (c) furnish or cause to be furnished any nonpublic information regarding the Company’s businessor documentation to, or (d) accept any offer from or enter into any Contract agreement or understanding with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Buyer and its affiliatesAffiliates and Representatives) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Companyany merger, whether by mergerconsolidation, recapitalization, reorganization, sale of stockassets (other than sales of Inventory in the Ordinary Course of Business or the disposition of obsolete and fully-depreciated assets not used in the Business during the twelve (12) months preceding the date hereof), sale of assetsequity interests, or other business combination or otherwise involving the Business, the Purchased Stock, and/or the Company (each, an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, Seller and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Seller shall cause the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalto), and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and cause their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Affiliates and Representatives to, (i) immediately cease any and cause to be terminated all existing discussions discussions, negotiations, or negotiations other activities with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect toto any Alternative Transaction and (ii) promptly request the return or destruction of all confidential information provided to any other Person pursuant to a confidentiality agreement or otherwise in connection with any such discussions, negotiations, or other activities. The Seller shall promptly (and in any event within twenty-four (24) hours of receipt) notify Buyer in writing upon receipt by the Seller or the Company, or any of their respective Affiliates or Representatives, of any inquiry, offer, or proposal regarding an Alternative Transaction, which is reasonably likely to give rise to notice shall include the identity of the Person making such inquiry, offer or result in, a Business Combination Proposalproposal.
Appears in 1 contract
Exclusivity. (a) From During the period commencing immediately on the date of execution of this Agreement letter agreement and ending on the earlier of the date of execution of a definitive merger agreement and 5:00 p.m. New York City time, September 19, 2008 (i) the Closing and (ii) the termination “Exclusivity Period”), none of this Agreement, the Company shall notor any of its subsidiaries, affiliates, officers, directors, employees, attorneys, accountants, investment bankers and shall direct its Representatives not toother agents or representatives (collectively, “Representatives”) will, directly or indirectly, (A) solicit, negotiate encourage, cooperate with, provide approve or permit any nonpublic information regarding the Company’s businessoffers, bids or indications of interest, or enter into initiate or engage in negotiations with any Contract withperson other than Purchaser, with respect to the business of the Company or any part thereof or any other transaction which would conflict with the intent of this letter agreement, including without limitation any (i) direct or indirect acquisition or purchase by any person or entity of more than 10% of the voting securities of, or in equity interest in, the Company or any manner knowingly encourageof its material subsidiaries or (ii) merger, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition consolidation or sale of all or substantially all of the equity interests or assets of the Company, whether by mergeror any recapitalization, sale of stockliquidation, sale of assetsdissolution or similar transaction involving the Company or any material subsidiary thereof (collectively, business combination or otherwise (an “Alternative TransactionTransactions”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, shall immediately cease any and all existing ongoing discussions or negotiations with any person conducted heretofore third party with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsExcept as permitted by Paragraph 2 of this letter agreement, his or her consideration none of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed furnish, or authorize or permit any of their respective Representatives to be a breach of furnish, any information concerning this Section 7.05(a) by letter agreement or the transactions contemplated hereby to any person or entity or any non-public information regarding the Company’s business or any part thereof to any person or entity. For clarityIn the event that any person or entity should seek to initiate negotiations relative to an Alternative Transaction or any other material transaction regarding the Company’s business or any part thereof, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction shall immediately notify Purchaser of such contact and the material terms and conditions of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into acquisition of 5% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 5% or more of the combined voting power of the Company or (3) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 5% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with Parent and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a6.4(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Parent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a6.4(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a6.4(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC Parent shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
transaction (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Parent shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on to the earlier of (i) the Closing and (ii) such time as this Agreement is terminated in accordance with its terms, except for the termination of this AgreementTransactions, the Company shall not, and shall direct cause its Affiliates and Representatives not to, directly or indirectly, (Aa) solicit, negotiate withinitiate or knowingly encourage any inquiry, provide indication of interest, proposal or offer from any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Parent, its Affiliates and its affiliates) relating their Representatives), with respect to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (Bb) enter into any agreement regarding, continue or otherwise (i) participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Person (other than Parent, its Affiliates and their Representatives) regarding a Competing Transaction, (ii) furnish to any Person (other than Parent, its Affiliates and their Representatives) any information or documentation with respect to a Competing Transaction or the Company Group and (iii) cooperate with, assist in, participate in, facilitate or encourage a Competing Transaction or (c) enter into any Alternative Transaction. The Company also agrees that it will promptly request each person understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with any Person (other than the parties hereto Parent, its Affiliates and their respective Representatives) that has prior to regarding a Competing Transaction. Promptly following the date execution hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no any event later than within one (1) Business Day after Day), the Company become aware of such inquiry or proposalshall (i) notify such person in writing that terminate access to any Person (other than Parent, the Company is subject Group and their respective Affiliates and Representatives) to an exclusivity agreement any electronic data room maintained by, or on behalf of, the Company Group or its Representatives with respect to any Competing Transaction, the sale Company Group or the Transactions and (ii) exercise any contractual rights available to it (or any other member of the Company that prohibits it from considering such inquiry Group) to cause each Person (other than Parent, its Affiliates and their Representatives) who received non-public or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity confidential information of the person making Company Group in connection with any possible Competing Transaction to cause such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by Persons to promptly return such information to the Company or destroy such information. To the extent any member of the Company Group or its Representatives shall be deemed to be a breach receives any written proposal during the period from the date of this Section 7.05(a) by Agreement to the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction earlier of the terms of this Section 7.05.
(b) From Closing and after the date hereof until the Effective Time or, if earlier, the termination of this AgreementAgreement in accordance with its terms, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect toto a Competing Transaction, any person (other than the Company, its stockholders and/or any Company shall promptly notify Parent in writing of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, the material terms of such proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof keep Parent informed with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalsuch proposal.
Appears in 1 contract
Sources: Merger Agreement (Global Business Travel Group, Inc.)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier to occur of (i) the Closing CLOSING and (ii) the termination of this AgreementAgreement in accordance with its terms, ▇▇▇▇▇▇ and the Company SHAREHOLDERS shall not, and shall direct ensure that none of its AFFILIATES or their respective Representatives not to, directly or indirectly, : (Aa) solicit, negotiate initiate, seek or encourage any inquiry, offer or proposal from; (b) initiate or participate in any discussions or negotiations with; (c) furnish any information or documentation to; or, provide (d) accept any nonpublic information regarding the Company’s business, offer from or enter into any Contract agreement or understanding with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC PEÑOLES and its affiliatesRepresentatives) relating to a potential acquisition of all any (i) sale or substantially all disposition of the equity interests or assets of the Company, CONCESSIONS whether by merger, way of sale of stockassets or shares of ▇▇▇▇▇▇ or other amalgamation, consolidation, recapitalization or other business combination transaction involving ▇▇▇▇▇▇; or, (ii) amalgamation, consolidation, recapitalization, sale of assets, sale of equity interests or other business combination involving any of the SHAREHOLDERS that would reasonably be expected to delay or otherwise preclude completion of the transactions contemplated by this Agreement (in either case, an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement . ▇▇▇▇▇▇ and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC SHAREHOLDERS shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders AFFILIATES and their respective affiliates Representatives to: (i) immediately cease and Representatives) cause to be terminated all existing discussions, negotiations or other activities with any other person conducted prior to the date hereof with respect toto any Alternative Transaction; and, (ii) promptly request the return of all confidential information provided to any other person pursuant to a confidentiality agreement or otherwise in connection with any such discussions, negotiations or other activities. ▇▇▇▇▇▇ and the SHAREHOLDERS shall immediately notify PEÑOLES in writing upon receipt by any of them, any of its AFFILIATES or any of their respective Representatives, of any offer or proposal regarding an Alternative Transaction, which is reasonably likely to give rise to notice shall indicate the identity of the person making such offer or result in, a Business Combination Proposalproposal and the material terms and conditions thereof.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement pursuant to Section 10.01 (the “Exclusivity Period”), the Company shall notneither Seller nor any Affiliate thereof shall, and none of them shall direct its permit their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, knowingly facilitate, enter into, or accept any proposal ofor offer, or otherwise cooperate in any person way with any Person or group, concerning a Competing Transaction (other than BCAC and its affiliates) relating or the submission of a Competing Transaction or any inquiry, proposal or offer that is reasonably likely to lead to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (B) or initiate, enter into any agreement regarding, or continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Person or group concerning a Competing Transaction, or agree to or endorse any Competing Transaction (or the submission of a Competing Transaction or any inquiry, proposal or offer that is reasonably likely to lead to a Competing Transaction).
(b) Seller shall (i) promptly following the date hereof, notify any Person or group with which discussions or negotiations of the nature described in Section 5.17(a) are pending as of the date of this Agreement that Seller is terminating such activities, discussions or negotiations; and (ii) promptly (and in any event within one (1) Business Day) terminate access to any online or other data rooms containing information with respect to Seller or any Alternative Transaction. The Company also agrees Affiliate thereof (with respect to the Business), the Business, any Group Company, the Acquired Assets or the Assumed Liabilities by each Person and its Representatives that it will promptly request each person (other than the parties hereto and their respective Representatives) that has on or prior to the date hereof executed a confidentiality agreement in connection with itsof this Agreement had access to any such online or other data rooms (other than Buyer, his its Affiliates or her consideration their Representatives or Representatives of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company Seller or any of its Affiliates). If Seller or any of its Affiliates or any of their respective Representatives receives any inquiry inquiry, proposal or proposal with respect to an Alternative offer for a Competing Transaction at any time prior to during the ClosingExclusivity Period, then the Company shall promptly (and in no event later than Seller shall, within one (1) Business Day after the Company become aware receipt thereof, notify Buyer of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposaloffer.
Appears in 1 contract
Exclusivity. In consideration of the expenses that the other Party has incurred and will incur in connection with the Transaction and such other Party's agreement set forth in this Section 7.6, each Party agrees that until such time as the Transaction has been terminated has terminated in accordance with the provisions of Section 9.1 (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreementsuch period, the Company "Exclusivity Period"), neither it nor any of its representatives, officers, employees, directors, agents, stockholders, subsidiaries or affiliates (collectively with respect to such Party, the "Group") shall notinitiate, and shall direct its Representatives not tosolicit, entertain, negotiate, accept or discuss, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, or offer from any person or group of persons (including members of its Group) other than BCAC the other Party (an "Acquisition Proposal") regarding (i) and its affiliatesmerger, asset purchase or securities purchase, the formation of a joint venture, strategic alliance or similar arrangement for the purpose of engaging in a business which is inconsistent with the Transaction, (ii) relating to a potential any transaction that could be preclusive of the Transaction, (iii) the acquisition of all or substantially all any portion of the equity interests or assets its Assets of the CompanyMountain High, whether by merger, sale purchase of stock, sale purchase of assets, business combination tender offer or otherwise otherwise, or (iv) provide any non-public information to any third party in connection with an “Alternative Transaction”), (B) Acquisition Proposal or enter into any agreement regardingagreement, continue arrangement or otherwise participate understanding requiring it to abandon, terminate or fail to consummate the Transaction. Each Party agrees to immediately notify the other Party if any member of its Group receives any indications of interest, requests for information or offers in respect of an Acquisition Proposal, and will communicate to such other Party in reasonable detail the terms of any discussions regardingsuch indication, request or furnish offer, and will provide it with copies of all written communications relating to any person any information with respect tosuch indication, request or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance offer. Immediately upon execution of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Letter, each Party shall, and shall direct cause its Representatives Group to, immediately cease terminate any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (or group of persons other than the parties hereto other Party and their respective Representatives) its affiliates regarding an Acquisition Proposal. Each Party represents that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any no member of its Representatives receives Group is party to or bound by any inquiry or proposal agreement with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later Acquisition Proposal other than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing under this Letter. Each Party acknowledges that the Company is subject to an exclusivity other Party will incur significant fees, expenses and costs in reliance on its agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.6. Accordingly, if it or any other member of its Group breaches any provision of Section 7.6 during the Exclusivity Period, it will indemnify the other Party for an amount equal to all reasonable fees, expenses and costs incurred by such other Party in connection with the Company Transaction (whether incurred before or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From and after the date of this Agreement and ending on the earlier of (i) until the Closing and (ii) the or termination of this AgreementAgreement pursuant to its terms, the Company shall Sellers will not, and shall direct its Representatives not nor will they authorize or permit the Company, or any of the Sellers’ or the Company’s officers, directors, employees or Affiliates, or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (Ai) solicit, negotiate withinitiate, provide encourage or induce the making, submission or announcement of any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or cooperate in take any way other action to facilitate any inquiries or the making of any proposal that would otherwise constitutes, or may reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (Cv) commenceenter into any letter of intent or similar document or any contract, continue agreement or renew commitment contemplating or otherwise relating to any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Acquisition Proposal. The Company shallSellers will, and shall direct its Representatives will cause the Company to, immediately cease any and all existing activities, discussions or negotiations with any person parties conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalAcquisition Proposal. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth in this Section 7.05(a) the preceding two sentences by any officer, director or employee of the Sellers, the Company, or any of their Affiliates, or any investment banker, attorney or other advisor or representative of any Seller, the Company or its Representatives any of their Affiliates shall be deemed to be a breach of this Section 7.05(a) 5.4 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Sellers.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Stock Purchase Agreement (Inverness Medical Innovations Inc)
Exclusivity. (a) From Prior to the date earlier of the Closing and the termination of this Agreement in accordance with Article VIII, the Corporation shall not (and ending on the earlier of shall not permit their respective directors, officers, employees, equityholders, Affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to), directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the Closing Agreement Date or received after the Agreement Date from any other Person to consummate a Competing Transaction, or (ii) solicit, initiate, knowingly facilitate or knowingly encourage, engage in discussions or negotiations with, or furnish information to, any Person other than Parent with respect to a Competing Transaction.
(i) The Corporation and the Stockholders shall cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated, (ii) the termination Corporation shall terminate access by any Person other than Parent to any virtual or electronic data room containing confidential information regarding the Corporation or any subsidiary of this Agreementthe Corporation and shall request from each Person that had access to any such data room (other than Parent and its Representatives) the prompt return or destruction of all non-public information with respect to the Corporation previously provided to such Person, and (iii) the Company Corporation and the Stockholders, shall not, and shall direct its cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide deal with any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (Person other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore Parent with respect to discussing or negotiating any Alternative Competing Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto Corporation shall notify Parent promptly, and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsany event within 24 hours, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at any time prior to is made, including in such notice the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering such Person making the inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05thereof, and, if in written form, complete and accurate copies thereof.
(bc) From and after The parties acknowledge that the date hereof until Corporation has withdrawn the Effective Time orfiling of the Triller LLC 2024 S-1 on May 6, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal2024.
Appears in 1 contract
Sources: Agreement and Plan of Merger (AGBA Group Holding Ltd.)
Exclusivity. (a) From During the date Interim Period, but only to the extent not inconsistent with the fiduciary duties of this Agreement and ending on the earlier of SPAC Board, (i) the Closing and (ii) the termination of this Agreement, the Company SPAC shall not, and shall will direct its Representatives acting on its behalf not to, directly or indirectly, (A) initiate, seek, solicit, negotiate with, provide any nonpublic information regarding the Company’s business, knowingly facilitate or enter into any Contract with, or in any manner knowingly encourage, any proposal ofsubmit an indication of interest for, any person (other than BCAC and its affiliates) relating to a potential acquisition of all inquiries, proposals or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way offer that would otherwise reasonably be expected to constitute or lead to, any Alternative a Competing SPAC Transaction or (CB) commence, continue or renew participate in any due diligence investigation negotiations with any third-party regarding any Alternative a Competing SPAC Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall(ii) SPAC will, and shall direct will cause its Representatives to, (A) terminate immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect third-party relating to a Competing SPAC Transaction and (B) promptly advise the Company in writing of any Alternative Transaction. The Company also agrees proposal regarding a Competing SPAC Transaction involving third-party that it may receive (it being understood that SPAC will promptly request each person (other than the parties hereto and their respective Representatives) that has prior not be required to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring inform the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry proposal or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the material terms of this Section 7.05thereof).
(b) From During the Interim Period, (i) the Company shall not, and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit the Parent or any of the Company’s Subsidiaries to, and shall direct its affiliates or Representatives to takeacting on its behalf not to, whether directly or indirectly, any action to (A) initiate, seek, solicit, initiateknowingly facilitate or encourage, continue submit an indication of interest for, any inquiries, proposals or engage offer from any person relating to a Competing Company Transaction, (B) participate in any discussions or negotiations withwith any person regarding, or enter into furnish or make available to any agreement with, person any information relating to the Company or encourage, respond, provide information to or commence due diligence its Subsidiaries with respect to, a Competing Company Transaction, other than to make such person aware of the provisions of this Section 10.8 or (C) enter into any understanding, arrangement, agreement, agreement in principle or other commitment (whether or not legally binding) with any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
a Competing Company Transaction; (a “Business Combination Proposal”ii) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Company shall, and shall cause its affiliates and Representatives to, to (A) terminate immediately cease any and all existing discussions or negotiations with any person relating to a Competing Company Transaction and (other than with B) promptly advise SPAC of any proposal regarding a Competing Company Transaction that it may receive (it being understood that the Company, its stockholders and their respective affiliates and Representatives) conducted prior Company will not be required to inform SPAC of the date hereof with respect to, identity of the person making such proposal or which is reasonably likely to give rise to or result in, a Business Combination Proposalthe material terms thereof).
Appears in 1 contract
Sources: Business Combination Agreement (APx Acquisition Corp. I)
Exclusivity. The Company agrees that it shall not, and shall not permit any of its respective subsidiaries or affiliates, and will cause all of their respective officers, directors, employees, agents and representatives (aincluding ▇▇▇▇▇▇ ▇. ▇▇▇▇▇) From not to, at any time during the period commencing on the date of this Agreement hereof and ending on the earlier to occur of December 31, 2004 or the filing of a chapter 11 case by the Company (the “Exclusivity Period”), directly or indirectly, (a) solicit, initiate or encourage submission of further proposals or offers from any person, other than DLJMB, relating to any acquisition or purchase of all or a significant portion of the assets of, including any river boat or other gaming facility or any contract to manage any gaming facility, or any equity interest in, the Company, any of its subsidiaries or affiliates controlled by the Company or any business combination involving the Company or any of its subsidiaries or affiliates controlled by the Company, or the declaration or payment of any dividend or any change in the public debt or capital structure of the Company or any of its subsidiaries or affiliates controlled by the Company, (b) further participate in any negotiations regarding, or furnish to any other person any additional non-public information with respect to, or otherwise further cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person other than DLJMB to do or seek any of the foregoing; provided, however, that, clause (b) hereof notwithstanding, the Company may furnish or cause to be furnished non-public information concerning it or its subsidiaries, to a party that (i) has, without the Closing Company’s solicitation, initiation or encouragement, sought such information and that the Company’s Board of Directors believes in good faith has expressed a legitimate interest in, and has the financial wherewithal to, consummate a transaction or transactions (A) of the kind described in clause (a) above in respect of the entire Company and its subsidiaries, taken as a whole, and (B) that, in the Board’s judgment, is or are likely, if consummated, to be more favorable to the Company and its subsidiaries and the other parties to whom the Company owes fiduciary duties than what is proposed in the Transaction with DLJMB and (ii) prior to the termination Company furnishing or causing to be furnished such non-public information, entered into a confidentiality agreement with the Company (a) on terms no less restrictive with respect to such party than the terms of the Confidentiality Agreement (as defined below) and (b) that does not prohibit the Company from promptly disclosing to DLJMB the information contained in clause (x) of the next sentence hereof in accordance therewith. During the Exclusivity Period, (x) the Company shall promptly advise DLJMB if any such proposal or offer or indication of interest, or any inquiry or contact with any person with respect thereto, is made, shall promptly inform DLJMB of all the terms and conditions thereof, and shall furnish to DLJMB copies of any such written proposal or offer or indication of interest and the contents of any communications in response thereto and any information provided to the applicable party (it being understood that the Company shall not be required to take any action pursuant to this Agreementclause (x) that would violate any pre-existing confidentiality obligation enforceable against the Company), and (y) the Company shall not waive any provisions of any “standstill” agreements between the Company and any party. During the Exclusivity Period, the Company shall not, and shall direct cause its Representatives subsidiaries and affiliates not to, directly or indirectlywithout the consent of DLJMB, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessenter into, or commit to enter into any Contract with, or in any manner knowingly encourageinto, any proposal ofmaterial transaction outside the ordinary course of business or any transactions of the type described in Paragraph 1(a). In addition, the Company agrees that it will, and shall cause its subsidiaries and affiliates to, immediately cease, from the date hereof through the end of the Exclusivity Period, any person (existing discussions or negotiations with any party other than BCAC and DLJMB or its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect affiliates that relate to, or cooperate in any way that would otherwise may reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation transaction outside of the Transactions shall not be deemed a violation ordinary course of this Section 7.05(abusiness, consistent with its past practices, or any transaction of the type described in Paragraph 1(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing have the right to terminate the Exclusivity Period upon five (5) days prior written notice to DLJMB if DLJMB terminates discussions regarding the potential Transaction or negotiations with any person conducted heretofore with respect ceases to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than actively pursue the parties hereto and their respective Representatives) that has Transaction prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration expiration of acquiring the Exclusivity Period. If DLJMB notifies the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to that DLJMB is terminating discussions regarding the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closingpotential Transaction, then the Company shall promptly (and in no event later than one (1) Business Day after have the Company become aware of such inquiry or proposal) notify such person in writing that right to immediately terminate the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Exclusivity Period.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Exclusivity Agreement (Trump Atlantic City Funding Iii Inc)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC Acquiror or any of its Affiliates or Representatives) concerning any purchase of any of the Company’s Equity Securities or the issuance and sale of any Equity Securities of the Company or its affiliates) relating to a potential acquisition Subsidiaries or any merger or sale of all or substantially all of assets involving the equity interests Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that that, the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action in connection with a direct or indirect public offering or direct or indirect listing of any Equity Securities of the Company or any of its Subsidiaries (or any Affiliate or successor of the Company or any of its Subsidiaries), including through a deSPAC transaction (each such direct or indirect listing or offering, but excluding the Transactions, a “IPO Transaction”). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Acquisition Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05IPO Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Acquiror shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or shareholders or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination involving Acquiror (a “Business Combination Proposal”) other than with the Company, its stockholders shareholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement to the Closing the MVA Second Instalment or the date on which this Agreement is terminated pursuant to the Section 8 (2), without the prior consent of the Investor, the Management Vendors shall not directly or indirectly (or through any third party), and ending on shall ensure that their respective affiliate and the earlier Group Companies (including the Listed Company) as of the first instalment of Founding Vendors Transaction shall not directly or indirectly (or through any third party), (i) solicit, initiate, consider, encourage or accept any proposal or offer made by any person or any entity in respect of the Closing following matters (i.e. matters referred to in (A), (B) and (ii) the termination of this AgreementC), the Company shall not, and shall direct its Representatives not to, directly or indirectly, collectively referred to as “Conflicting Transaction”): (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, acquire or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of purchase all or substantially all part of the equity interests or assets of the Group Companies (including the Listed Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)) from the Management Vendors, (B) enter into any agreement regardingmerger, continue consolidation or otherwise other business combination with the Group Companies (including the Listed Company), or acquire or purchase the material assets of the Group Companies (including the Listed Company), or propose any tender offer to the Group Companies (including the Listed Company), (C) enter into capital restructuring, structural restructuring, business restructuring or any other transaction that conflicts with the transactions contemplated under the Acquisition, with the Group Companies (including the Listed Company), or (ii) participate in any discussions regardingdiscussion, conversation, negotiation or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement communication with respect to the sale of Conflicting Transaction, or provide any information related to the Company that prohibits it from considering such inquiry above matters to any third party, or proposalallow any third party to proceed due diligence with respect to the Group Companies (including the Listed Company) for the Conflicting Transaction, and will provide BCAC with a copy or cooperate, assist, participate in or encourage any efforts or attempts of any such written inquiry or proposal or a detailed summary of third party to conduct the Conflicting Transaction in any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withother way, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence arrangement with respect to, any person third party for the Conflicting Transaction. The Management Vendors shall immediately cease it (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates their affiliate and Representatives tothe Group Companies (including the Listed Company) to cease it immediately) and shall cause the termination of all discussions, immediately cease conversations, negotiations or other communications and provision or sharing of information in relation to any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted Conflicting Transaction initiated prior to the date hereof execution of this Agreement. The Management Vendors shall promptly notify the Investor of any proposal, offer, inquiry or other contacts made by any entity with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalthe Conflicting Transactions.
Appears in 1 contract
Exclusivity. (a) From The Company and each of the Majority Stockholders acknowledge and agree that the Buyer has and will expend considerable money, resources and time in connection with consummating the transactions contemplated hereby. Accordingly, the Company and the Majority Stockholders shall, and shall cause their respective Affiliates and Representatives to: (i) immediately halt any discussions with third parties regarding any transaction the closing of which would be inconsistent with or interfere with or prevent or delay the Closing or that relates to any investment in or acquisition of the stock or a significant portion of the assets of the Company (including by way of merger or any other form of transaction) (each a “Competing Transaction”); and (ii) during the period commencing on the date of this Agreement and ending on with the earlier to occur of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms (subject to Section 10.2 hereof), the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate hold any discussions with, provide any nonpublic information regarding the Company’s businessto, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish respond to any person inquiry made by any information with respect tothird party concerning a proposed acquisition, or cooperate in any way that would otherwise reasonably be expected to lead with, agree to, assist or participate in, solicit, consider, entertain, facilitate or encourage, any Alternative Transaction effort or (C) commence, continue attempt by any third party to do or renew seek any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing, whether directly or indirectly. The Company shall, and shall direct its Representatives to, immediately cease the Majority Stockholders agree not to release any and all existing discussions or negotiations with third party from any person conducted heretofore with respect confidentiality agreement relating to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than such transaction or the parties hereto and their respective Representatives) that has prior standstill provisions of any agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring which the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofis a party. If the Company or any Majority Stockholder is, or if the Company or any Majority Stockholder becomes aware that any of its respective Affiliates or Representatives receives is, contacted in any inquiry or proposal with respect to an Alternative manner by any third party concerning a Competing Transaction at any time prior to the Closing(a “Competing Party”), then the Company and the applicable Majority Stockholder shall promptly (and in no any event later than one (1) Business Day after the Company become aware of such inquiry or proposalwithin 48 hours) notify such person the Buyer in writing that regarding such contact and furnish the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Buyer with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, or, if not in writing, a description thereof, including in each case the identity name of such Competing Party.
(b) Notwithstanding the person making such inquiry or proposal. Without limiting the foregoingprovisions of Section 6.11(a), the parties agree that any violation of the restrictions set forth Company may, in this Section 7.05(a) response to an unsolicited proposal from a Person in connection with a Competing Transaction, which proposal is first received by the Company or after its Representatives shall be deemed to be execution and delivery of this Agreement and which did not result from a breach of this Section 7.05(a) by 6.11(a), that the Company. For clarity’s board of directors determines, in good faith after consultation with outside legal and financial advisors, is or would reasonably be expected to lead to a Superior Proposal, (i) furnish information with respect to the Company to the Person making such proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive on such Person than the Confidentiality Agreement is on the Buyer, and (ii) participate in discussions or negotiations with such Person and its Representatives regarding such Competing Transaction; provided, however, that notwithstanding the foregoing or anything to the contrary in this Agreement, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of Parties agree that the terms of this Section 7.056.11(b) shall have no further force or effect whatsoever upon the Company’s receipt of the Stockholder Consent and, in furtherance thereof, the Company hereby irrevocably waives any rights to enforce or seek to enforce or invoke the terms of this Section 6.11(b) immediately upon its receipt of the Stockholder Consent.
(bc) From and If the Company’s board of directors receives a Superior Proposal after the date hereof until execution and delivery of this Agreement by the Effective Time orCompany and prior to the Company’s receipt of the Stockholder Consent, if earlierwhich Superior Proposal was not solicited by the Company in violation of Section 6.11(a), and as a result thereof the Company’s board of directors determines, in good faith, after consultation with outside legal and financial advisors, that the Company is required to take the applicable action described in the following clauses (i), (ii) or (iii) in order to fulfill its fiduciary duties to the Company’s stockholders, the termination Company’s board of directors may (i) terminate this Agreement pursuant to Section 10.1(l), (ii) change or modify its recommendation to the Company’s stockholders with respect to this Agreement and the transactions contemplated hereby, including the Merger, and/or (iii) recommend such Superior Proposal to the Company’s stockholders and may authorize the Company immediately thereafter to enter into an agreement with respect to such Superior Proposal, but only (x) at a time that is not less than 48 hours after the Company’s delivery to the Buyer of written notice advising the Buyer that the Company’s board of directors is prepared to approve a Superior Proposal, identifying the Person making such Superior Proposal and otherwise complying with this Section 6.11 and (y) after taking into full account any proposal by the Buyer to amend the terms or conditions of the Merger and this Agreement. For purposes of this Agreement, BCAC the term “Superior Proposal” shall not takemean any Competing Transaction which the Company’s board of directors determines in good faith, nor shall it permit any of after consultation with outside legal counsel and its affiliates or Representatives financial advisors, if completed on the terms proposed, would be more favorable to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other the Company’s stockholders than the CompanyMerger, its stockholders and/or taking into account (i) all of the terms and conditions of such proposal and this Agreement (including any proposal by the Buyer to amend the terms of their affiliates or Representatives), concerning, relating the Merger) and (ii) such other factors (in addition to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”price) other than with as the Company’s board of directors reasonably considers to be relevant (including, its stockholders and their respective affiliates and Representatives. BCAC shallfor example, legal, regulatory, and timing factors); provided, however, that notwithstanding the foregoing or anything to the contrary in this Agreement, the Parties agree that the terms of this Section 6.11(c) shall cause its affiliates and Representatives to, immediately cease any and all existing discussions have no further force or negotiations with any person (other than with effect whatsoever upon the Company’s receipt of the Stockholder Consent and, in furtherance thereof, the Company hereby irrevocably waives any rights to enforce or seek to enforce or invoke the terms of this Section 6.11(c) immediately upon its stockholders and their respective affiliates and Representatives) conducted prior to receipt of the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalStockholder Consent.
Appears in 1 contract
Sources: Merger Agreement (Pc Mall Inc)
Exclusivity. (a) From During the date Interim Period, none of this Agreement and ending the Acies Parties, on the earlier of (i) the Closing and (ii) the termination of this Agreementone hand, or the Company shall notand its Subsidiaries, and shall direct its on the other hand, will, nor will they authorize or permit their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.:
(bi) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, take any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), Person concerning, relating to or which is intended or is would reasonably likely be expected to give rise to or result inlead to, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transactionan Acquisition Proposal;
(ii) in the case of Acies, fail to include the Acies Board Recommendation in (or remove from) the Registration Statement and the Proxy Statement; or
(iii) withhold, withdraw, qualify, amend or modify (or publicly propose or announce any intention or desire to withhold, withdraw, qualify, amend or modify), in a “Business Combination Proposal”) manner adverse to the other than with Party, in case of the Company, its stockholders the Company Board Recommendation, and in the case of Acies, the Acies Board Recommendation.
(b) Each of the Company and the Acies Parties, shall promptly, and in any event within one (1) Business Day of the date of this Agreement:
(i) terminate access of any third Person (other than the Company or the Acies Parties and/or any of their respective affiliates Affiliates or Representatives) to any data room (virtual or actual) containing any confidential information with respect to the Company or Acies;
(ii) immediately cease and Representatives. BCAC shallcause to be terminated, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders their and their respective affiliates Subsidiaries’ Representatives to immediately cease and Representatives) conducted prior cause to the date hereof be terminated, all existing activities, discussions, negotiations and communications, if any, with any Persons with respect to, or which is reasonably likely to give rise to or result in, any Acquisition Proposal; and
(iii) shall promptly request the return or destruction of any confidential information provided to any Person in connection with a Business Combination prospective Acquisition Proposal (subject in each case to the terms of any applicable confidentiality agreement) and, in connection therewith, shall, if the applicable confidentiality or non-disclosure agreement so allows, request that all such Persons provide prompt written certification of the return or destruction of all such information.
(c) Promptly upon receipt of an unsolicited Acquisition Proposal, each of the Acies Parties and the Company shall notify the other Party thereof, which notice shall include a written summary of the material terms of such unsolicited proposal. Notwithstanding the foregoing, the Parties may respond to any unsolicited Acquisition Proposal only by indicating that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) Each Company Party shall immediately cease and terminate, and cause its Representatives to cease and terminate, any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by any Company Party with respect to any proposed, potential or contemplated Company Transaction.
(b) From the date hereof until the earliest of (i) the Closing Date, (ii) one month after the termination of this Agreement, and (iii) the date after the termination of this Agreement on which the Investors have unilaterally and ending on permanently ceased to make good faith efforts to negotiate a potential transaction with the Company (the "Exclusivity Period"), the Company shall not permit any of its Subsidiaries or Affiliates or any of its or their Representatives to, directly or indirectly, (A) solicit or initiate, or encourage the submission of, any offer with respect to, (B) participate in any discussions or negotiations regarding, (C) furnish to any Person any information, other than information made publicly available by the Company, with respect to, or take any other action to facilitate any inquiries or the making of any offer or proposal with respect to, or (D) authorize, engage in, or enter into any agreement or understanding with respect to, any Company Transaction; provided, however, that the Exclusivity Period shall be deemed to end upon the earlier of (i) the Closing Date and (ii) the termination of this Agreement, in respect of any Company Transaction that, regardless of the structure of such Company shall notTransaction, and shall direct its Representatives does not to, in any way directly or indirectlyindirectly involve or include an offer, sale, exchange (Aincluding exchanges effected by operation of law) solicit, negotiate with, provide or other placement of any nonpublic information regarding the Company’s business, equity securities or enter into Rights of any Contract with, or in any manner knowingly encourage, any proposal of, any person Company Party (other than BCAC and its affiliates) relating to a potential acquisition placement of all such securities or substantially all Rights with the public for the purpose of the obtaining equity interests financing or assets a placement of any equity securities or Rights of a Subsidiary solely with the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request notify each person Investor of any proposal regarding a Company Transaction (other than which notice shall identify the parties hereto Person making the proposal and their respective Representativesset forth the material terms thereof) that has prior to the date hereof executed a confidentiality agreement in connection with itsCompany, his any of its Subsidiaries or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company Affiliates or any of its or their Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to may receive during the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Exclusivity Period.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) or the termination of this Agreement, the Company shall Seller will not, and shall direct will cause its Representatives not toand each member company of the Company Group’s respective officers, managers, directors, employees and Affiliates and their representatives to not, directly or indirectly, indirectly (Ai) solicit, negotiate withinitiate, encourage or accept any proposal or offer relating to any Acquisition Proposal, (ii) engage in negotiations or discussions concerning, provide any nonpublic information regarding the Company’s business, or enter into to any Contract person in connection with, or otherwise cooperate in any manner knowingly encourageway, assist or participate in, facilitate or encourage the submission of, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingthat constitutes, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, any Alternative Transaction an Acquisition Proposal or (Ciii) commence, continue agree to or renew approve any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Acquisition Proposal. The Company shallSeller shall notify Purchaser promptly, but in any event within two (2) Business Days, orally and shall direct its Representatives toin writing if any such Acquisition Proposal, immediately cease or any and all existing discussions inquiry or negotiations other contact with any person conducted heretofore with respect thereto, is made. Any such notice to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement Purchaser shall indicate in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person making such Acquisition Proposal, inquiry or proposalother contact and the terms and conditions of such Acquisition Proposal, inquiry or other contact. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed The Seller will immediately cease and cause to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease terminated any and all existing contacts, discussions or and negotiations with third parties regarding the foregoing. The Seller shall not release any person (other than from, or waive any provision of, any confidentiality or standstill agreement to which any member of the Company Group is a party in connection with the Companyprocess of selling the Company Group, its stockholders and their respective affiliates and Representatives) conducted without the prior to written consent of Purchaser. As used herein, the date hereof with respect term “Acquisition Proposal” means any offer or proposal relating to, or which is reasonably likely to give rise to or result any indication of interest in, (i) a Business Combination Proposaldirect or indirect possible sale or other disposition (whether by merger, reorganization, recapitalization or otherwise) of all or any part of the stock, Equity Securities or assets of the Company Group, (ii) any merger, consolidation or other business combination 31 relating to the Company Group or (iii) any recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company Group.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its controlled affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the CompanyNovus, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination merger, sale of ownership interests and/or assets (other than asset sales in the ordinary course of business) of the Company, recapitalization or similar transaction
, in each case other than (i) the Transactions, (ii) any purchase of shares of Novus Common Stock in any Private Placement, or (iii) any issue of shares of Company Preferred Stock, Company Common Stock or any Company Interim Period Convertible Notes or other indebtedness convertible into or securities exercisable for any such Company Preferred Stock, Company Common Stock permitted without the consent of Novus in accordance with Section 6.01(b), including in any Company Permitted Interim Financing (a “Company Business Combination Proposal”) other than with the CompanyNovus, its stockholders and their respective affiliates and RepresentativesRepresentatives or the PIPE Investors with respect to the Private Placement; provided that the foregoing shall not apply to, or restrict the Company from soliciting, structuring, entering into or consummating a Company Permitted Interim Financing. BCAC In addition, the Company shall, and shall cause its controlled affiliates to, and shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Company Business Combination Proposal.
(b) During the Interim Period, Novus shall not, nor shall Novus permit any of its controlled affiliates or Representatives to, solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than with the Company, its stockholders and/or any of their affiliates or Representatives), concerning any merger, purchase of ownership interests or assets of Novus, recapitalization or similar business combination transaction or any other “Business Combination” (as defined in the Novus Organizational Documents), in each case, other than the Transactions (a “Novus Business Combination Proposal”). In addition, Novus shall, and shall cause its controlled affiliates to, and shall cause their respective affiliates Representatives to, immediately cease any and Representatives) conducted prior to the date hereof all existing discussions or negotiations with any Person with respect to, or which is reasonably likely to give rise to or result in, a any Novus Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Novus Capital Corp)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct the Company permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and SPAC or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger or similar business combination transaction or sale of all or substantially all of the equity interests assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the ordinary course of business) (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions and the transactions contemplated by the other Transaction Agreements shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action in connection with a public offering of any Equity Securities of the Company or any of its Subsidiaries (or any Affiliate or successor of the Company or any of its Subsidiaries). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SPAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or or any of their affiliates respective Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination involving SPAC (a “Alternate Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions and the transactions contemplated by the other Transaction Agreements shall not be deemed a violation of this Section 8.03(b). BCAC SPAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a an Alternate Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) Prior to Completion or the termination of this Agreementagreement, the Company Sellers shall not, and shall direct cause their respective Affiliates and its and their respective Representatives not to, directly or indirectly:
(i) enter into, (A) solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or encourage or respond to any inquiries, indications of interest, offers or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other than BCAC and its affiliatesentity or “group” within the meaning of Section 13(d) relating to a potential acquisition of all or substantially all of the equity interests or assets United States Securities Exchange Act of the Company1934, whether by mergeras amended, sale of stock, sale of assets, business combination or otherwise (concerning an “Alternative Transaction”), ;
(Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or Transaction; or
(Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement agreement and the Transaction Documents Business Combination Agreement and the consummation of the Transactions contemplated hereby and thereby shall not be deemed a violation of this Section 7.05(a). The Company clause 9.2.
(b) Each Seller shall, and shall direct cause its Affiliates and their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore prior to entering into this agreement with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person .
(other than the parties hereto and their respective Representativesc) that has prior to the date hereof executed If a confidentiality agreement in connection with its, his Seller or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives Representative receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the ClosingCompletion, then the Company such Seller shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Seller becomes aware of such inquiry or proposal) notify such person in writing that the Company such Seller is subject to an exclusivity agreement with respect to the sale of the Company Transactions contemplated under this agreement that prohibits it such Seller from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Sellers agree that any violation of the restrictions set forth in this Section 7.05(a) clause 9.2 by the Company a Seller or any of its Affiliates or their respective Representatives shall be deemed to be a breach of this Section 7.05(a) clause 9.2 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Seller.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and SPAC and/or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any purchase of all or substantially all of the equity interests or assets any of the Company, whether by merger, ’s equity securities or the issuance and sale of stockany securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries or in a Permitted Equity Financing) or any merger or sale of assetssubstantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business combination or otherwise (each such acquisition transaction, but excluding the Transactions, an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that that, the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a9.03(a). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SPAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives; provided, that, the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 9.03(b). BCAC SPAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct the Company permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (Ai) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and Acquiror or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any merger or similar business combination transaction or sale of all or substantially all of the equity interests assets involving the Company or its Subsidiaries, taken as a whole (other than immaterial assets or assets sold in the ordinary course of business) (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a8.03(a) or (ii) any action in connection with a public offering of any Equity Securities of the Company or any of its Subsidiaries (or any Affiliate or successor of the Company or any of its Subsidiaries). The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC Acquiror shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders and/or or any of their affiliates respective Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination involving Acquiror (a “Alternate Business Combination Proposal”) other than with the Company, its their stockholders and their respective affiliates Affiliates and Representatives; provided, that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). BCAC Acquiror shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a an Alternate Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From 3.1 By countersigning this Offer Letter, the date Seller and the Company undertake, in consideration of this Agreement the Buyer granting the Put Option, as from the Put Option Date and ending on until the earlier of (i) the Closing Signing Date and (ii) the termination Put Option Expiration Date (the "Exclusivity Period"), not to, and shall cause their Affiliates and Representatives and the other members of this Agreementthe Company Group not to, directly or indirectly, solicit, knowingly encourage, participate in, initiate, engage in or enter into any negotiation, discussion, Contract, arrangement or understanding with, any Person other than the Buyer and its Affiliates and their respective Representatives, that constitutes or relates to, or could reasonably be expected to lead to, an Acquisition Proposal.
3.2 The Seller and the Company shall, and shall cause their Affiliates and Representatives and the other members of the Company Group to, immediately:
(a) cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing; and
(b) terminate access of any Person (other than the Buyer and its Affiliates and Representatives) to any data room hosted in connection any Acquisition Proposal.
3.3 The Seller and the Company shall not, and shall direct its cause their Affiliates and Representatives and the other members of the Company Group not to, directly or indirectly, (A) solicit, negotiate with, provide release any nonpublic information regarding the Company’s businessPerson from, or enter into waive any Contract with, or in any manner knowingly encourage, any proposal provision of, any person confidentiality agreement to which the Company or any of the Company Subsidiaries is a party, without the prior written consent of the Buyer.
3.4 The Seller shall promptly (other than BCAC and in any event within two (2) Business Days thereof) notify the Buyer in writing if the Seller or any of its affiliatesAffiliates has received, and/or has received subsequent amendments to: (i) any inquiry, expression of interest, proposal or offer relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regardingconstituting, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, an Acquisition Proposal; (ii) any Alternative Transaction request for discussions or (C) commencenegotiations, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that request for information relating to the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation business of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement Group in connection with its, his an Acquisition Proposal or her consideration of acquiring the Company to return a potential Acquisition Proposal; or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior (iii) any request for access to the date hereof. If business, finances, properties, assets, or the books and records of the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale other members of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC Group in connection with a copy potential Acquisition Proposal of which Seller or any of its Affiliates is or becomes aware, with such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case notice to the Buyer indicating the identity of the person making such inquiry or proposal and the terms and conditions of such proposal. Without limiting , if any.
3.5 The Seller shall promptly provide the foregoingBuyer with: (i) a copy of any written notice or other written communication from any person informing the Seller or any of their Affiliates that it is considering making, the parties agree that or has made a proposal regarding, an Acquisition Proposal; (ii) a copy of any violation of the restrictions set forth in this Section 7.05(aAcquisition Proposal (or any amendment thereof) received by the Company Seller or any of its Representatives Affiliates; and (iii) such other details of any such Acquisition Proposal that the Buyer may reasonably request, and thereafter the Seller shall be deemed promptly keep the Buyer reasonably informed of any material change to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination such Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) such time as this Agreement is terminated in accordance with Article IX, except for the termination of transactions contemplated by this Agreement, the Company shall Company, and the Holder Representative will not, and shall direct its Representatives will cause each of their respective Affiliates and representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide enter into or continue any nonpublic information regarding negotiation, discussion, contract, agreement, instrument, arrangement or understanding with any party, with respect to the transactions contemplated by this Agreement, the sale or transfer of voting control of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the equity interests or assets of the Company, whether by or any merger, sale of stock, sale of assets, business combination recapitalization or otherwise similar transaction with respect to the Company or its businesses (an and “Alternative Acquisition Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and the Holder Representative shall, and each of the foregoing shall direct its Representatives cause their respective Affiliates, directors, officers, counsel, advisors, agents or other representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Persons (other than Acquiror and Merger Sub) conducted heretofore with respect to any Alternative Acquisition Transaction. The Company also agrees that it will promptly request and the Holder Representative, and each person (other than the parties hereto and of their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with itsAffiliates, his officers, directors, employees, counsel, advisors, agents or her consideration of acquiring the Company to return other representatives, do not have any agreement, arrangement or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal understanding with respect to an Alternative any Acquisition Transaction (except for this Agreement). The parties hereto recognize and agree that immediate irreparable damages for which there is not adequate remedy at any time prior to law would occur in the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach provisions of this Section 7.05(a) 4.6 are not performed in accordance with the specific terms hereof or are otherwise breached. It is accordingly agreed that in the event of a failure by the Company. For claritya party to perform its obligations under this Agreement, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction non-breaching party shall be entitled to specific performance through injunctive relief, without the necessity of posting a bond, to prevent breaches of the terms provisions and to enforce specifically the provisions of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage 4.6 in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating addition to any business combination transaction
(a “Business Combination Proposal”) other than with the Companyremedy to which such party may be entitled, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions at law or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalin equity.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Seller shall not, and shall direct its cause the Company Entities and their respective Representatives not to, solicit, initiate, encourage, discuss or negotiate with any other Person a possible sale (directly or indirectly) of the Seller Business, in the form of a sale of all or any material portion of the Seller’s assets related to the Seller Business, including any sale of the Company Entities (Aother than the sale of inventory in the ordinary course of business) solicit, negotiate with(an “Acquisition Proposal”), provide any nonpublic information regarding to any other Person concerning such business (other than information which the Company’s Company Entities provides to other Persons in the ordinary course of business, so long as the Seller has no reason to believe that the information may be utilized to evaluate an Acquisition Proposal) or enter into an agreement, arrangement or understanding, whether written or oral, with any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesthe Buyer) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement Acquisition Proposal. The Seller and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company Entities shall, and shall direct its cause each of their Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will such Acquisition Proposal and promptly request each person (other than but in any event within five Business Days) after the parties hereto and their respective Representatives) that has date of this Agreement, if not already done so prior to the date hereof executed of this Agreement, instruct any Person who entered into a confidentiality agreement with the Seller that has not expired or been terminated in connection with its, his any actual or her consideration of acquiring the Company potential Acquisition Proposal to return or destroy all Confidential Information furnished to such person by information or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal documents in accordance with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) such confidentiality agreement. From and after the date hereof until the Effective Time or, if earlierhereof, the termination Seller shall promptly inform the Buyer of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, contact with any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, third party relating to or which is intended or is reasonably likely the foregoing, and promptly communicate to give rise to or result in, the Buyer the terms of any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(inquiry which a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to Company Entity may receive after the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination an Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (i) enter into, solicit, initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (A) solicit, negotiate with, provide any nonpublic information regarding sale of assets of the Company equal to 15% or more of the Company’s businessassets or to which 15% or more of the Company’s revenues or earnings are attributable, (B) the issuance or enter into acquisition of 15% or more of the outstanding capital stock (on an as converted to Company Common Stock basis) or other voting securities representing 15% or more of the combined voting power of the Company or (C) any Contract withconversion, consolidation, merger, liquidation, dissolution or similar transaction which, if consummated, would result in any manner knowingly encourage, any proposal of, any person (or other than BCAC and its affiliates) relating to a potential acquisition of all entity or substantially all group beneficially owning 15% or more of the equity interests or assets combined voting power of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise other than with TortoiseCorp and its Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a)7.05. The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it them from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 7.05 by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 7.05 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Tortoise Acquisition Corp.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company and each Seller shall not, and shall direct not permit any of his, her or its respective Affiliates or Representatives not to, directly or indirectly, (Aa) (i) initiate or continue any contact with, (ii) make, solicit, negotiate encourage or respond to any inquiries or proposals by, (iii) enter into or participate in any discussions or negotiations with, provide (iv) disclose, directly or indirectly, any nonpublic information concerning the Business or properties of the Company Group or the Transaction to, or (v) afford any access to the Company Group’s properties, books or records to, any Person, in the case of each of clauses (i) through (v) above, in connection with any possible proposal regarding the Company’s business, direct or enter into indirect sale of any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all portion of the equity interests Equity Securities or assets of the Company, whether by merger, Company (other than the sale of stockinventory in the Ordinary Course of Business), sale of assetsa merger or consolidation involving the Company Group, business combination or otherwise any similar transaction, in each case except as contemplated by this Agreement (an “Alternative Transaction”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to accept any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement withfor, or encouragean Alternative Transaction. During the Pre-Closing Period, respond, provide information to or commence due diligence with respect to, any person (other than each Seller and the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC Company shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease all discussions and actions which violate or conflict with this Section 5.06. During the Pre-Closing Period, the Company and each Seller shall, promptly following receipt, give Buyer notice of any inquiry, communication or proposal regarding an Alternative Transaction (and all existing discussions the terms thereof) received by a Seller, any member of the Company Group, or negotiations with any person (other than with the Companyof his, her or its stockholders respective Affiliates or Representatives. Each Seller shall be responsible for any breach of this Section 5.06 by his, her or its Affiliates or Representatives. The Company and their respective affiliates and Representatives) conducted prior each Seller represents that neither he, she or it nor any of his, her or its Affiliates or Representatives is a party to the date hereof or bound by any Contract with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalan Alternative Transaction.
Appears in 1 contract
Sources: Share Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, the Company shall not, not (and the Company shall direct cause its Affiliates and Representatives not to), directly or indirectly, : (Aa) solicit, negotiate with, provide initiate or knowingly encourage (including by way of furnishing any nonpublic information regarding relating to the Company’s businessAcquired Companies), or enter into knowingly induce or knowingly take any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise action which could reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or could reasonably be likely to lead to, any Alternative Transaction or an Acquisition Proposal; (Cb) commenceother than informing Persons of the provisions contained in this Section 5.4, enter into, continue or renew participate in any due diligence investigation discussions or any negotiations regarding any Alternative TransactionAcquisition Proposal or otherwise take any action to knowingly facilitate or knowingly induce any effort or attempt to make or implement an Acquisition Proposal; provided(c) approve, that endorse, recommend or enter into any Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the executionCompany to abandon or terminate its obligations under this Agreement; or (d) agree, delivery and performance of this Agreement and the Transaction Documents and the consummation resolve or commit to do any of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shallagrees to notify Parent promptly (and in all cases within twenty-four (24) hours) in writing if any Person makes any proposal, offer, inquiry or contact with respect to an Acquisition Proposal and provide Parent with a description of the material terms and conditions thereof, including the identity of such Person. The Company shall direct its Representatives to, immediately cease and cause to be terminated any and all existing discussions with any Person (other than Parent) concerning any proposal relating to an Acquisition Proposal. With respect to the Persons with whom discussions or negotiations have been terminated, the Company shall use its commercially reasonable efforts to obtain the return or destruction of, in accordance with the terms of any person conducted heretofore with respect applicable confidentiality agreement, any confidential information previously furnished to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person Person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Representatives. The Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry not release any Person from, or proposal) notify such person in writing that waive any provision of, any confidentiality or standstill agreement to which the Company is subject to an exclusivity agreement with respect to a party, without the sale prior written consent of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Parent.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, : (Ai) solicit, negotiate withinitiate, provide encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any nonpublic inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information regarding the Company’s business, or enter into to any Contract Person in connection with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Alternative Transaction 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 or other 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 (other than Acquiror) to do or seek to do any of the foregoing. The Company agrees to (A) notify Acquiror promptly (and, in any event, within one (1) Business Day) upon receipt of any Company Acquisition Proposal by the Company, describing the material terms and conditions thereof in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal), (B) keep Acquiror reasonably informed on a current basis of any modifications to such offer or information and (C) commencerefrain from (and to cause its Subsidiaries and their respective Representatives to refrain from) conducting any further discussions with, continue providing any information to or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)entering into negotiations with such Persons. The Company shall, and shall direct its Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person conducted heretofore Persons (other than Acquiror and its Representatives) that may be ongoing with respect to any Alternative Transaction. The a Company also agrees that it will promptly request each person (other than the parties hereto Acquisition Proposal and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of terminate any such written inquiry or proposal or a detailed summary of Person’s and such Person’s Representative’s access to any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05electronic data room.
(b) From and after the date hereof of this Agreement until the Effective Time or, if earlier, earlier of the Closing or the termination of this AgreementAgreement in accordance with its terms, BCAC Acquiror shall not, and shall cause its Representatives not taketo, nor shall it permit any directly or indirectly: (i) solicit, initiate, encourage (including by means of its affiliates furnishing or Representatives to takedisclosing information), whether knowingly facilitate, discuss or negotiate, directly or indirectly, any action inquiry, proposal or offer (written or oral) with respect to solicit, initiate, continue an Acquiror Acquisition Proposal; (ii) furnish or engage disclose any non-public information to any Person in discussions or negotiations connection with, or that could reasonably be expected to lead to, an Acquiror Acquisition Proposal; (iii) enter into any agreement Contract or other arrangement or understanding regarding an Acquiror Acquisition Proposal; or (iv) otherwise cooperate in any way with, or encourageassist or participate in, respond, provide information to or commence due diligence with respect to, knowingly facilitate or encourage any person effort or attempt by any Person (other than the Company) to do or seek to do any of the foregoing. Acquiror agrees to (A) notify the Company promptly (and, its stockholders and/or in any event, within one (1) Business Day) upon receipt of any Acquiror Acquisition Proposal by Acquiror, describing the material terms and conditions thereof in reasonable detail (including the identity of any person or entity making such Acquiror 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 7.02 shall not prohibit the Company, Acquiror or any of their affiliates respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 7.02 (such as answering phone calls) or Representatives)informing any Person inquiring about a possible Company Acquisition Proposal or Acquiror Acquisition Proposal, concerningas applicable, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders existence of the covenants and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalagreements contained in this Section 7.02.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company Parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person (or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning any sale of any material assets of such Party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such Party or any of such Party’s Subsidiaries other than BCAC with the other Parties to this Agreement and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise their respective Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Contemplated Transactions shall not be deemed a violation of this Section 7.05(a)4.5. The Company Each Party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each Party also agrees that it will promptly request each person (other than the parties Parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information confidential information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a Party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such Party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such Party becomes aware of such inquiry or proposal) notify such person Person in writing that the Company such Party is subject to an exclusivity agreement with respect to the sale of the Company Contemplated Transactions that prohibits it such Party from considering such inquiry or proposal, and will provide BCAC to the extent not inconsistent with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity fiduciary duties of the person making such inquiry Board of Directors of FSI or proposalthe Company. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a) 4.5 by the Company a Party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 4.5 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such Party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Merger Agreement (Flexible Solutions International Inc)
Exclusivity. (a) From 11.5.1 As from the date of this Agreement Signing Date until and ending on including the earlier of (i) the Closing Completion having occurred and (ii) the termination of this Agreementdate that the falls 3 (three) months after the Long Stop Date, the Company Seller shall not, and shall direct its Representatives cause each member of the Seller's Group not to, directly or indirectly, :
(Aa) solicit, negotiate withinitiate, provide any nonpublic information regarding encourage or facilitate the Company’s businesssale, assignment, transfer, change of control, divestiture, merger or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of similar transaction involving all or substantially all any material portion of the equity interests equity, debt or assets of the CompanyDivestment Business, whether including the sale or purchase of some or all of the Acquisition Shares, by mergerany Person other than the Purchaser (any such transaction, sale of stockan "Alternate Transaction");
(b) participate, sale of assetscontinue, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in suffer to permit any discussions regardingor negotiations with, or furnish to any person provide any information with respect to, or cooperate in knowingly take any way action to facilitate or promote any inquiries or the making of any proposal that would otherwise constitutes, or may reasonably be expected to lead to, an Alternate Transaction;
(c) provide access to any Alternative Transaction Person (other than Purchaser or its Representatives) to, or furnish any such Person with, any information (Cincluding Confidential Business Information) commence, continue in connection with or renew in furtherance of any due diligence investigation regarding Alternate Transaction;
(d) engage in any Alternative Communications with any third Person (other than Purchaser or its Affiliates or Representatives) with respect to an Alternate Transaction; providedor
(e) enter into any agreement, that the executionagreement in principle, delivery and performance understanding or other similar arrangement with respect to, or in connection with, any Alternate Transaction (including, for avoidance of this Agreement and the Transaction Documents and the consummation doubt, any confidentiality or non-disclosure undertaking in connection therewith).
11.5.2 The Seller, members of the Transactions Seller's Group and their respective Representatives shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing activities, discussions or and negotiations with any person individual or entity conducted heretofore with respect to any Alternative proposal for an Alternate Transaction. The Company also agrees that it will promptly request To the extent permitted under the relevant confidentiality agreements entered into prior to the Signing Date in connection with such Alternate Transaction, from and after the execution of this Agreement, the Seller and each person (other than member of the parties hereto Seller's Group and their respective RepresentativesRepresentatives shall promptly, but in any event within 48 (forty-eight) that has prior to hours, advise Purchaser in writing of the date hereof executed a confidentiality agreement in connection with itsreceipt, his directly or her consideration indirectly, of acquiring the Company to return any inquiries, discussions, negotiations, or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect proposals relating to an Alternative Alternate Transaction at any time prior to (including the Closing, then specific terms thereof and the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering such inquiry other individual or proposal, entity or individuals or entities involved) and will provide BCAC with promptly furnish to Purchaser a copy of any such written inquiry or proposal or in addition to a detailed summary copy of any such verbal inquiry information provided to or proposalby any Third Party relating thereto.
11.5.3 Prior to Completion, including in each case the identity Seller or the applicable member of the person making such inquiry Seller's Group shall:
(a) require the prompt destruction or proposal. Without limiting the foregoing, the parties agree that return of any violation of the restrictions set forth Confidential Business Information provided to any third Party in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making connection with an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.Alternate Transaction;
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit assign to Target any of its affiliates confidentiality or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any standstill agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to an Alternate Transaction executed within the last 24 (twenty-four) months and if assignment is not permissible, use reasonable efforts to enforce its rights under such confidentiality or which is intended standstill agreement if there ever arises an issue with the counterparty thereto; and
(c) refrain from waiving or is reasonably likely to give rise to modifying any rights under any confidentiality or result in, any offer, inquiry, proposal or indication of interest, written or oral standstill agreement relating to any business combination transaction
an Alternate Transaction, in the case of sub-clause (a “Business Combination Proposal”a) other than with and (b) above, to the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with extent permitted under the Company, its stockholders and their respective affiliates and Representatives) conducted relevant confidentiality agreements entered into prior to the date hereof Signing Date in connection with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalsuch Alternate Transaction.
Appears in 1 contract
Exclusivity. (a) From During the period from the date of this ----------- Agreement through the Closing Date:
(a) Parent, Seller and ending on the earlier of Company shall cease any discussions or negotiations with any third party regarding (i) any merger, sale of assets not in the Closing and ordinary course of business, acquisition, business combination, change of control or other similar transaction involving the Company or any Subsidiary or any division of the Company or any Subsidiary, (ii) any purchase or other acquisition by any Person of Shares, or (iii) any sale or issuance by the termination Company or any Subsidiary of this Agreementany shares of its capital stock;
(b) Neither Parent, Seller, the Company nor any Subsidiary shall, nor shall notany of them authorize or permit any of their respective directors, and shall direct its Representatives not officers, employees, representatives, agents or Affiliates to, directly or indirectly, (A) solicit, negotiate initiate, encourage, respond favorably to, permit or condone inquiries or proposals from, or provide any confidential information to, or participate in any discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC Buyer and its affiliatesdirectors, officers, employees, representatives and agents) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by concerning (i) any merger, sale of stockassets not in the ordinary course of business, sale of assetsacquisition, business combination combination, change of control or otherwise other similar transaction involving the Company or any Subsidiary or any division of the Company or any Subsidiary, (an “Alternative Transaction”ii) any purchase or other acquisition by any Person of Shares, or (iii) any sale or issuance by the Company or any Subsidiary of any shares of its capital stock;
(c) Seller will promptly advise Buyer of, and communicate to Buyer the terms and conditions of (and the identity of the Person making), any such inquiry or proposal received; and
(Bd) enter into Seller shall use commercially reasonable efforts to enforce the terms of any agreement regarding, continue confidentiality or otherwise participate in any discussions regarding, or furnish standstill agreements with third parties relating to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry Subsidiaries or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates respective businesses, assets or Representatives), concerning, relating employees and to or which is intended or is reasonably likely require any such party to give rise to or result in, return any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with confidential information regarding the Company, Company and its stockholders Subsidiaries and their respective affiliates businesses which they may have obtained pursuant to any such agreement. All of Seller's rights in and Representatives. BCAC shall, to such confidentiality and standstill agreements shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with be assigned to Buyer upon the Company, its stockholders and their respective affiliates and Representatives) conducted prior to occurrence of the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalClosing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ace LTD)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and and/or (ii) the termination of this Agreement, the Company shall not, and shall direct cause its Representatives not to, directly or indirectly, (A) enter into, solicit, negotiate initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any nonpublic information regarding to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (1) any sale of assets of the Company equal to 5% or more of the Company’s businessassets or to which 5% or more of the Company’s revenues or earnings are attributable, (2) the issuance or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all 5% or substantially all more of the equity interests outstanding capital stock (on an as converted to Company Common Stock basis) or assets other voting securities representing 5% or more of the combined voting power of the Company, whether by or (3) any conversion, consolidation, merger, sale liquidation, dissolution or similar transaction which, if consummated, would result in any person or other entity or group beneficially owning 5% or more of stockthe combined voting power of the Company, sale of assets, business combination or otherwise other than with BLAC and its Representatives (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction Transaction, or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions transactions contemplated hereby shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him him, or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC BLAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Bellevue Life Sciences Acquisition Corp.)
Exclusivity. (a) From During the period from the date of this Agreement and ending on through the earlier of (i) the Closing and (ii) or the termination of this AgreementAgreement in accordance with its terms, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC Seller shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiateencourage, continue initiate or engage in discussions or negotiations with, or provide any information to, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Buyer and/or its Affiliates and Representatives) concerning any direct or indirect acquisition of all or substantially all of the Capital Stock or assets of any Group Company, its stockholders and/or or any of their affiliates merger, consolidation or Representativesother business combination involving any Group Company (each, an “Acquisition Transaction”), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, and Seller and its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates Affiliates and Representatives to, shall immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Person (other than with the Company, Buyer and its stockholders and their respective affiliates Affiliates and Representatives) conducted with respect to any such Acquisition Transaction; provided, however, that Buyer hereby acknowledges that prior to the date hereof with respect of this Agreement, Seller and its Affiliates and Representatives have provided information relating to the Group Companies and has afforded access to, and engaged in discussions with, other Persons in connection with a proposed Acquisition Transaction and that such information, access and discussions could reasonably enable another Person to form a basis for an Acquisition Transaction without any breach by Seller of this Section 7.6. During the period from the date of this Agreement through the earlier of the Closing or which is reasonably likely to give rise to the termination of this Agreement in accordance with its terms, Seller shall notify Buyer promptly upon the receipt of any proposal, offer, inquiry or result in, a Business Combination Proposalcontact from any Person (other than Buyer or its Affiliates and Representatives) in respect of any Acquisition Transaction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Acadia Healthcare Company, Inc.)
Exclusivity. (a) From Each Seller Party and the date of this Company agree that between the Agreement Date and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, such Seller Party and the Company shall not, and each shall direct its take all action necessary to ensure that their respective Affiliates and Representatives not toshall not, directly or indirectly, (A) solicita)solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesi) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or ownership interest of the Company or assets of the Company, whether by other than inventory to be sold in the Ordinary Course, (ii) to enter into any merger, sale of stock, sale of assets, consolidation or other business combination involving all or otherwise any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company or (an “Alternative Transaction”iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving all or any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company (the foregoing clauses (i), (Bii) enter into any agreement regardingand (iii), continue a “Company Sale Transaction”) (for the avoidance of doubt, a Company Sale Transaction shall exclude a Seller CIC Transaction and the Reorganization); or otherwise participate (b)participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. Each Seller Party and the Transaction Documents Company immediately shall cease and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative a Company Sale Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring Seller and/or the Company to return shall notify Purchaser promptly, but in any event within 24 hours, orally and in writing if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at any time prior a Company Sale Transaction, is made. Any such notice to the Closing, then the Company Purchaser shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or other contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting Each Seller Party and the Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which such Seller Party or the Company is a party relating to a Company Sale Transaction, without the prior written consent of Purchaser. Notwithstanding the foregoing, the parties agree that any violation of the restrictions set forth nothing in this Section 7.05(a6.3 or any other provision in this Agreement shall prohibit or limit a Seller Party from soliciting, initiating, considering, encouraging or accepting any other proposals or offers or participating in any discussions, conversations, negotiations or other communications regarding a Seller CIC Transaction with any third-party (and from consummating any such Seller CIC Transaction) by provided that any such Seller CIC Transaction does not prevent, prohibit, challenge or materially hinder or delay the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction consummation of the terms of this Transaction. -51- Section 7.056.4.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Equity Purchase Agreement
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Each Seller agrees that it shall not, it shall cause its Affiliates not to, it shall use its reasonable best efforts to cause its and its Affiliates’ officers, directors and employees not to, and it shall direct its Representatives and its Affiliates’ investment bankers, attorneys, accountants, agents, advisors, representatives and other Affiliates not to, directly or indirectly, (Aa) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into knowingly facilitate or encourage the submission of any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)Acquisition Proposal, (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or cooperate in take any way other action knowingly to facilitate or encourage any inquiries or the making of any proposal that would otherwise reasonably constitutes, or could be expected to lead to, any Alternative Transaction Acquisition Proposal (except to provide notice of the existence of these provisions) or (Cc) commence, continue or renew enter into any due diligence investigation regarding agreement with respect to any Alternative Transaction; provided, that Acquisition Proposal. Without limiting the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation generality of the Transactions foregoing, each Seller shall, shall not be deemed a violation of this Section 7.05(a). The Company shallcause its Affiliates to, and use its reasonable best efforts to cause its and its Affiliates’ officers, directors and employees, and shall direct its Representatives investment bankers, attorneys, accountants, agents, advisors, representatives and other Affiliates to, immediately cease and cause to be terminated any and all existing activities, including discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or RepresentativesBuyer), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect toto any Acquisition Proposal. For purposes of this Section 7.11, “Acquisition Proposal” means any offer or proposal for, or which is reasonably likely to give rise to or result indication of interest in, a Business Combination Proposalmerger, consolidation, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Business, any Sold Company or any of the Sold Subsidiaries, any purchase of at least twenty percent (20%) of (i) the assets of the Business, Sold Companies and the Sold Subsidiaries, taken as a whole, or (ii) any units, capital stock or other equity interests of any Sold Company or any of the Sold Subsidiaries, other than, in each case, (x) the transactions contemplated by this Agreement and (y) any offer, transaction or proposal with respect to the Company or any of its businesses (other than the Business) that would not preclude the consummation of the Contemplated Transactions.
Appears in 1 contract
Exclusivity. (a) From Other than in connection with the Transactions, the Company and the Contributors will not (and will not permit their respective directors, officers, employees, shareholders or other investors, affiliates, financial advisors, attorneys, accountants, or other representatives (collectively, “Representatives”) to) directly or indirectly, (i) accept, or enter into any agreement with respect to, any existing proposal or offer outstanding as of the date of this Agreement and ending on or received after the earlier date of (i) the Closing and this Agreement from any other party to consummate a Competing Transaction or (ii) solicit, initiate, facilitate or encourage, engage in discussions or negotiations with, or furnish information to, any Person other than the termination of this Agreement, Acquiror with respect to a Competing Transaction.
(b) The Company and the Contributors will cause any pending discussions or negotiations with any other Person regarding a Competing Transaction to be immediately terminated and the Company shall and the Contributors will not, and shall direct its will cause their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations deal with any person conducted heretofore or entity other than the Acquiror with respect to discussing or negotiating any Alternative Competing Transaction. The Company also agrees that it and the Contributors will promptly request each person (other than the parties hereto and their respective Representatives) that has prior not release any third party from, or waive any provision of, any confidentiality, standstill, or similar agreement to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If which the Company or any of its Representatives receives Contributor is a party or bound.
(c) The Company and the Contributors will notify in writing the Acquiror immediately if any inquiry or proposal with respect to an Alternative regarding a Competing Transaction at any time prior to is made, including in such notice the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale identity of the Company that prohibits it from considering such Person making the inquiry or proposal, and will provide BCAC with a copy the terms of any such written inquiry or proposal or a detailed summary of any such verbal the inquiry or proposal, including and, if in written form, complete and accurate copies thereof, subject in each case to any confidentiality obligations currently outstanding; provided that in the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by event the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarityContributors withhold information in reliance on such confidentiality obligations, such Party will inform the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquiror that information is being withheld.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Contribution Agreement (Cybin Inc.)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (ia) the Closing and (iib) the termination of this Agreement, the Company parties shall not, and shall direct cause their respective Subsidiaries and its and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any proposal ofinformation to, or otherwise cooperate in any way with, any person or other entity or “group” within the meaning of Section 13(d) of the Exchange Act, concerning (other than BCAC and A) any sale of any material assets of such party or any of the outstanding capital stock or any conversion, consolidation, liquidation, dissolution or similar transaction involving such party or any of such party’s Subsidiaries or (B) with respect to Pace, any transaction or series of related transactions under which Pace or any of its affiliates, directly or indirectly, (1) relating to acquires or otherwise purchases any other person, (2) engages in a potential acquisition of business combination with any other person or (3) acquires or otherwise purchases all or substantially all a material portion of the equity interests assets or assets businesses of any other person (in the Companycase of each of (1), (2) and (3), whether by merger, sale consolidation, recapitalization, purchase or issuance of stockequity or debt securities, sale tender offer or otherwise) (each of assetsA and B, business combination or otherwise (an “Alternative Transaction”), other than with the other parties to this Agreement and their respective Representatives, (Bii) enter into any agreement regarding, continue or otherwise knowingly participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)9.04. The Company Each party shall, and shall direct cause its Subsidiaries and its and their respective affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company Each party also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her its consideration of acquiring the Company an Alternative Transaction to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her it prior to the date hereofhereof (to the extent so permitted under, and in accordance with the terms of, such confidentiality agreement). If the Company a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company such party shall promptly (and in no event later than one twenty-four (124) Business Day hours after the Company become such party becomes aware of such inquiry or proposal) notify such person in writing that the Company such party is subject to an exclusivity agreement with respect to the sale of the Company Transaction that prohibits it such party from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) 9.04 by the Company a party or any of its Subsidiaries or its or their respective affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a) 9.04 by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05such party.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (TPG Pace Tech Opportunities Corp.)
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) the termination of such time as this AgreementAgreement is validly terminated in accordance with Article VI, the Company PKI and its Affiliates and their respective directors and officers shall not, and PKI shall direct not authorize, permit or cause its and its Affiliates’ other Representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessknowingly encourage, knowingly facilitate or enter into any Contract withnegotiation, discussion or in contract, with any manner knowingly encourage, any proposal of, any person other party (other than BCAC Buyer and its affiliatesAffiliates and its and their respective Representatives) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate furnish any confidential or non-public information relating to the Business, the Acquired Assets, the Assumed Liabilities or the Acquired Companies, or afford access to the business, properties, assets, liabilities, books or records of the Business or the Acquired Companies, to such other party, in each case in connection with the sale of all or more than 15% of the Acquired Assets (based on fair market value), or any way that would otherwise reasonably be expected merger, recapitalization or similar transaction with respect to lead toAcquired Companies representing more than 15% of the Acquired Companies (based on fair market value) (any of the foregoing, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that an “Acquisition”). Immediately following the execution, delivery and performance execution of this Agreement Agreement, PKI shall cease and the Transaction Documents and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or and negotiations with any person persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person an Acquisition, and within five (other than the parties hereto and their respective Representatives5) that has prior to Business Days after the date hereof executed hereof, instruct any Person who has entered into a confidentiality agreement in connection with its, his a potential Acquisition that has not expired or her consideration of acquiring the Company been terminated in accordance with its terms to return or destroy all Confidential Information furnished to information or documents received thereunder in accordance with the terms of such confidentiality agreement. Until the earlier of the Closing and such time as this Agreement is validly terminated in accordance with Article VI, PKI shall promptly notify Buyer in writing if any person by makes any written proposal or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal offer with respect to an Alternative Transaction at any time prior to the Closing, then the Company Acquisition and shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than Buyer with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalmaterial terms thereof.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Exclusivity. (a) From During the period from the date of this Agreement and ending on hereof until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement in accordance with its terms, neither Carlyle nor the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its cause their respective Representatives not to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or provide any information to or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than Investor and/or its Affiliates, as permitted pursuant to clause (i)(A) of the last sentence of Section 5.3 or otherwise in connection with the transactions contemplated hereby, including the SPAC Transaction and the Alternative Transaction) concerning any sale of any of the Company’s Shares or, except as permitted by Section 5.1 (including Section 5.1 of the Company Disclosure Letter) other equity securities or any equity securities of any Subsidiary of the Company, its stockholders and/or any merger of their affiliates the Company or Representatives), concerning, relating to direct or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication indirect sale of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with majority of the consolidated assets of the Company, the Remaining Business or the Enterprise Business or similar transaction involving the Company or any of its stockholders Subsidiaries, other than assets sold in the [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and their respective affiliates (ii) is the type that the registrant treats as private or confidential. Ordinary Course of Business or to the extent permitted by Section 5.1 (including Section 5.1 of the Company Disclosure Letter) (each such acquisition transaction, an “Acquisition Transaction”). The Company and Representatives. BCAC Carlyle shall, and shall cause its affiliates and their respective Representatives to, (a) immediately cease and cause to be terminated any and all existing discussions or and negotiations with any person (such Person other than (i) Investor and its Representatives, (ii) as permitted pursuant to clause (i)(A) of the last sentence of Section 5.3 or (iii) otherwise in connection with the Companytransactions contemplated hereby (including the SPAC Transaction and the Alternative Transaction), regarding any Acquisition Transaction, (b) promptly request any such Person to promptly return or destroy all confidential information concerning the Company and its stockholders Subsidiaries, and their respective affiliates (c) promptly terminate all access previously granted to such Persons to any physical or electronic data room. Carlyle and Representatives) conducted prior the Company will promptly inform Investor of the details of any proposals or offer to engage in any negotiations or discussions, in each case, made after the date hereof with respect to, or which is reasonably likely to give rise to or result in, from a Business Combination Proposalthird party concerning an Acquisition Transaction.
Appears in 1 contract
Sources: Framework Agreement (Twilio Inc)
Exclusivity. (a) From In consideration of the date substantial expenditures of time and expense to be undertaken by Buyers in connection with the consummation of the transactions contemplated by this Agreement and Agreement, for a period ending on the earlier of (ia) the Closing and September 30, 2014, (iib) the termination of this AgreementAgreement or (c) the Second Closing, Sellers and the Equity Owner shall deal exclusively with Buyers with respect to the sale of the Purchased Assets, the Company shall not, and shall direct its Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessBusiness, or enter into any Contract withthe issuance of the equity interests of, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition the sale of all or substantially all of the assets or properties of, Sellers. In addition, during such time period, Sellers shall not, and shall direct their officers, directors, financial advisors, accountants, attorneys, and other Affiliates (collectively, together with Sellers and the Equity Owner, the "Selling Group") not to (a) solicit submission of proposals or offers from any Person other than Buyers (or their Affiliates) relating to any acquisition or purchase of all or any part of the equity interests, assets or properties of Sellers, the sale or issuance of any equity interests of Sellers or any entity formed by the Equity Owner or any Affiliate thereof to which any of the equity interests or any assets or properties of the CompanyBusiness may be contributed, whether or any merger or consolidation of any Seller or of any entity formed by mergerthe Equity Owner or its Affiliates to which any assets or properties of the Business may be contributed (each an "Acquisition Proposal"); provided, sale however, in no event shall the foregoing prohibit Sellers or the Equity Owner (or their Affiliates) from selling the assets and businesses of stock▇▇▇▇▇▇▇ Lubricant Works, sale of assetsLLC or CAM2 International, business combination LLC, (b) participate in any discussions or negotiations regarding, or furnish any information to any Person other than Buyers (and its representatives), or otherwise cooperate in any way or assist, facilitate, or encourage any Acquisition Proposal by any Person other than Buyers or (an “Alternative Transaction”), (Bc) enter into any agreement regardingor understanding, continue whether oral or otherwise participate in any discussions regardingwritten, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and prevent the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)transactions contemplated hereby. The Company shallEquity Owner and Sellers agree to (w) notify Buyers immediately if any member of the Selling Group receives any indication of interest, request for information, or offer in respect of an Acquisition Proposal, (x) inform the persons sending such indication, request, or offer that Sellers and the Business are bound by an exclusivity arrangement (without any reference to Buyers or its respective Affiliates), (y) communicate to Buyers in reasonable detail the terms of any such indication, request, or proposal, and shall direct its Representatives to, immediately cease any and (z) provide to Buyers copies of all existing discussions or negotiations with any person conducted heretofore with respect written communications relating to any Alternative Transactionsuch indication, request, or proposal. The Company also agrees Except as provided in the proviso contained in this paragraph above, the Equity Owner and Sellers represent that it will promptly request each person (other than no member of the parties hereto and their respective Representatives) that has prior Selling Group is a party to the date hereof executed a confidentiality or bound by any agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later Acquisition Proposal other than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of under this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on hereof until the earlier of (i) the Closing Effective Time and (ii) the termination of this AgreementAgreement pursuant to its terms, except for the transactions contemplated by this Agreement and the other Transaction Documents, the Company Company, the Equityholder Representative and the Equityholders shall not, and each shall direct its cause their respective Affiliates and Representatives not to, directly or indirectly, (A) solicit, negotiate withencourage, provide any nonpublic information regarding the Company’s businessinitiate, or enter into any Contract with, regarding or in any manner knowingly encourage, entertain the submission of any proposal of, or offer from any person (other than BCAC and its affiliates) Person relating to a potential the direct or indirect acquisition of all or substantially all any of the equity interests in the Acquired Companies or all or any material portion of the assets of the CompanyAcquired Companies (other than the acquisition of inventory in the ordinary course of business), whether by in an acquisition structured as a merger, sale of stockbusiness combination, consolidation, exchange, sale of assets, business combination sale of stock or otherwise (an “Alternative Transaction”)otherwise, (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist, cooperate with or cooperate participate in or knowingly facilitate or knowingly encourage in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Person (other than Parent and Merger Sub) conducted heretofore with respect to any Alternative Transactionof the matters addressed in this Section 5.07. The Company also agrees In the event that it will promptly request each person any Acquired Company, the Equityholder Representative, or any of their respective Affiliates or Representatives, receives or becomes aware of any communication from any Person (other than the parties hereto and Parent, Merger Sub or their respective Affiliates and Representatives) that has prior to regarding any of the date hereof executed a confidentiality agreement matters addressed in connection with itsthis Section 5.07, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Acquired Company or any of its Representatives receives any inquiry Equityholder Representative (or proposal with respect to an Alternative Transaction at any time prior to the Closingrespective Affiliate or Representative), then the Company as applicable, shall promptly (and in no event later than one (124 hours after receipt thereof) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement provide Parent with respect to the sale written notice of the Company that prohibits it from considering such inquiry or proposalsame, and will provide BCAC with a copy which notice (unless prohibited by the terms of any such written inquiry confidentiality agreement in effect as of the date hereof or proposal or a detailed summary of any such verbal inquiry or proposal, including otherwise by Applicable Law) shall indicate in each case reasonable detail the identity of the person making offeror and the terms and conditions of such proposal, inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05contact.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company The Seller shall not, and shall direct not permit any of its Representatives not Representatives, or any Company, or Company Subsidiary, or any Representative of any Company or any Company Subsidiary, in each case, to, directly or indirectly, (Aa) solicit, negotiate withinitiate, provide encourage, encourage others to solicit, facilitate, agree to, recommend or accept (or publicly propose or announce any nonpublic information regarding the Company’s businessintention or desire to agree to, accept, approve, endorse or recommend) any proposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Bb) enter into into, participate in, maintain or continue any agreement regardingdiscussions, continue conversations, negotiations or otherwise participate in any discussions other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way way, assist or participate in, or knowingly facilitate or encourage the submission of, any proposal that would otherwise constitutes, or could reasonably be expected to lead to, any Alternative Transaction or an Acquisition Proposal. The Seller (Cx) commenceimmediately shall cease (and cause its Representatives, continue or renew any due diligence investigation regarding any Alternative Transaction; providedthe Companies and its Representatives, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation Subsidiaries of the Transactions shall not be deemed a violation of this Section 7.05(aCompanies and their Representatives to cease). The Company shall, and shall direct its Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person of the foregoing, and (y) immediately revoke or withdraw access of any Person (other than the parties hereto Buyer and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to any of the Companies or their respective Representatives) that has prior to the date hereof executed a confidentiality agreement Subsidiaries in connection with its, his or her consideration of acquiring an Acquisition Proposal and request from each Person (other than the Company to Buyer and its Representatives) the prompt return or destroy destruction of all Confidential Information furnished non-public information with respect to the Companies or their respective Subsidiaries previously provided to such person by Person in connection with an Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any offer or on behalf proposal for, or any indication of itinterest in, him or her prior any of the following (other than pursuant to the date hereof. If terms of this Agreement): (i) any direct or indirect acquisition or purchase of any portion of the Company capital stock or other equity or ownership interest of the Companies or any of its Representatives receives Subsidiaries or the assets of the Companies and their respective Subsidiaries (other than inventory to be sold in the ordinary course of business consistent with past practice), (ii) any inquiry merger, consolidation or proposal with respect to an Alternative Transaction at any time prior other business combination relating to the ClosingCompanies or any of their respective Subsidiaries, then or (iii) any recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company Companies or any of their respective Subsidiaries. The Seller shall promptly (and but in no event later than any event, within one (1) Business Day after the Company become aware of such inquiry or proposalDay) notify such person the Buyer in writing that after receipt by the Company is subject to an exclusivity agreement with respect Seller or any of the Companies or their respective Subsidiaries (or, to the sale knowledge of the Company that prohibits it from considering such inquiry or proposalSeller, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to taketheir respective Representatives), whether directly of (i) any Acquisition Proposal (or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations withmaterial modification thereto), or enter into (ii) any agreement withrequest for non-public information relating to any Company or any Subsidiary of any Company or for access to any of the properties, books or encourage, respond, provide information to records of any Company or commence due diligence with respect to, any person (Subsidiary of any Company by any Person or Persons other than the Company, Buyer and its stockholders and/or any of their affiliates or Representatives), concerning, relating Representatives reasonably expected to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(be in connection with a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination potential Acquisition Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Pre-Closing and (ii) the termination of this AgreementPeriod, Seller, the Company and each Member shall not, and shall direct not permit any of his, her or its respective Affiliates or Representatives not to, directly or indirectly, (Aa) (i) initiate or continue any contact with, (ii) make, solicit, negotiate encourage or respond to any inquiries or proposals by, (iii) enter into or participate in any discussions or negotiations with, provide (iv) disclose, directly or indirectly, any nonpublic information regarding concerning the Business or properties of the Company or the Transactions to, or (v) afford any access to the Company’s businessproperties, books or enter into any Contract with, or in any manner knowingly encouragerecords to, any Person, in the case of each of clauses (i) through (v) above, in connection with any possible proposal of, regarding the direct or indirect sale of any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all portion of the equity interests Equity Securities or assets of the Company, whether by merger, Company or Seller (other than the sale of stockinventory in the Ordinary Course of Business), sale of assetsa merger or consolidation involving the Company or Seller, business combination or otherwise any similar transaction, in each case except as contemplated by this Agreement (an “Alternative Transaction”), or (Bb) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to accept any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement withfor, or encouragean Alternative Transaction. During the Pre-Closing Period, respondSeller, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders Company and their respective affiliates and Representatives. BCAC each Member shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease all discussions and actions which violate or conflict with this Section 5.05. During the Pre-Closing Period, Seller, the Company and each Member shall, promptly following receipt, give Buyer notice of any inquiry, communication or proposal regarding an Alternative Transaction (and all existing discussions or negotiations with any person (other than with the terms thereof) received by Seller, the Company, any Member or any of his, her or its stockholders respective Affiliates or Representatives. Seller and their respective affiliates each Member shall be responsible for any breach of this Section 5.05 by his, her or its Affiliates or Representatives. Seller, the Company and Representatives) conducted prior each Member represents that neither he, she or it nor any of his, her or its Affiliates or Representatives is a party to the date hereof or bound by any Contract with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.an Alternative Transaction
Appears in 1 contract
Sources: Unit Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Exclusivity. (a) From Except as set forth on Schedule 7.03(a), during the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall notnot take, and nor shall direct it permit any of its Affiliates or Representatives not toto take, whether directly or indirectly, (A) any action to solicit, negotiate initiate or engage in discussions or negotiations with, provide any nonpublic information regarding the Company’s business, or enter into any Contract agreement with, or in any manner knowingly encourage, any proposal ofor provide information to, any person Person (other than BCAC and SPAC and/or any of its affiliatesAffiliates or Representatives) relating to a potential acquisition concerning any purchase of all or substantially all any of the Company Ordinary Shares or other equity securities of the Company or the issuance and sale of any securities of, or equity interests in, the Company or its Subsidiaries (other than any purchases of the Company Ordinary Shares or other equity securities of the Company by the Company from employees of the Company or its Subsidiaries or by any current equity holder of the Company or Company Shareholders, or any merger or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary and usual course of business (each such acquisition transaction, but excluding the CompanyTransactions, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Acquisition Transaction”). Notwithstanding the foregoing, (B) enter into the Company may respond to any unsolicited proposal regarding an Acquisition Transaction by indicating only that the Company is subject to an exclusivity agreement regarding, continue and is unable to provide any information related to the Group Companies or otherwise participate entertain any proposals or offers or engage in any negotiations or discussions regardingconcerning an Acquisition Transaction for as long as that exclusivity agreement remains in effect and, or furnish to any person any information with respect toin such event, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery Company shall notify SPAC of such facts and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)circumstances. The Company shall, and shall direct cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal Original Merger Agreement with respect to, or which is reasonably likely to give rise to or result in, an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Acquisition Transaction.
(b) From and after During the date hereof until the Effective Time orInterim Period, if earlier, the termination of this Agreement, BCAC SPAC shall not take, nor shall it permit any of its affiliates Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person Person (other than the Company, its stockholders the Company Shareholders and/or any of their affiliates Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
Business Combination (a “Business Combination Proposal”) ), other than with the Company, its stockholders the Company Shareholders and their respective affiliates Affiliates and Representatives. BCAC SPAC shall, and shall cause its affiliates Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) Person conducted prior to the date hereof of the Original Merger Agreement with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal. Notwithstanding the foregoing and in addition thereto, the SPAC may respond to any unsolicited proposal regarding a Business Combination Proposal by indicating only that SPAC is subject to an exclusivity agreement and is unable to provide any information related to the SPAC, the Transactions or entertain any proposals or offers or engage in any negotiations or discussions concerning a Business Combination Proposal for as long as that exclusivity agreement remains in effect and, in such event, the SPAC shall notify Company of such facts and circumstances.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company shall not, and shall direct its Representatives cause the Company Subsidiaries not to, directly or indirectlyand shall direct that their respective representatives not, (Aa) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, seek, facilitate, entertain, support or induce the making, submission or announcement of any Competing Transaction or any inquiries or the making of any proposal of, any person (other than BCAC and its affiliates) relating that constitutes or could reasonably be expected to lead to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Competing Transaction”), (Bb) enter into any agreement regardinginto, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or otherwise cooperate in any way with, or execute or enter into any Contract with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that would otherwise constitutes, or could reasonably be expected to lead to, any Alternative Competing Transaction, (c) agree to, accept, approve, endorse or recommend any Competing Transaction, (d) enter into any letter of intent or any other contract contemplating or otherwise relating to any Competing Transaction or (Ce) commence, continue or renew submit any due diligence investigation regarding any Alternative Transaction; provided, that Competing Transaction to the execution, vote of the Existing Equityholders. Upon execution and delivery and performance of this Agreement and Agreement, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives cause all Persons acting on behalf of it to, (i) immediately cease and cause to be terminated any and all existing discussions or negotiations with any person Person (other than Purchaser and its Affiliates) conducted heretofore on or before the date hereof with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person Competing Transaction unless and until this Agreement is terminated pursuant to Section 11.1, and (other than the parties hereto and their respective Representativesii) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company instruct all Persons to return or destroy all Confidential Information furnished to such person confidential information provided by or on behalf of it, him or her prior to the date hereof. If the Company during any Competing Transaction discussions. The Company shall use commercially reasonable efforts to provide prompt notice to Purchaser of (x) the receipt of any bona fide proposal, communication or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to Competing Transaction, (y) the Closing, then the Company shall promptly (material terms and in no event later than one (1) Business Day after the Company become aware conditions of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalCompeting Transaction, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case (z) the identity of the person such Person making any such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Competing Transaction.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Franklin BSP Realty Trust, Inc.)
Exclusivity. (a) From Except to the date of extent expressly permitted under this Agreement Agreement, without the Purchaser’s prior written approval, the Sellers agree that between the Execution Date and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the Company Sellers shall not, and shall direct its cause their Affiliates (including the Company Group) and each of their respective Representatives not to, directly or indirectly: (i) solicit, initiate, discuss, pursue, participate in, facilitate, consider, encourage or accept any other proposals or offers from any Person (A) solicit, negotiate with, provide relating to any nonpublic information regarding the Company’s businessdirect or indirect acquisition or purchase of, or enter into any Contract withinvestment in, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all any portion of the equity interests Company Group Interests or assets any Assets, except for sales and dispositions of Hydrocarbons made in the Company, whether by merger, sale ordinary course of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”)consistent with past practices and any other sales and dispositions expressly permitted under Section 6.4, (B) to enter into any agreement regardingmerger, continue joint venture, consolidation or other business combination relating to the Company or any member of the Company Group, or (C) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any member of the Company Group or the Assets (any of the foregoing matters set forth in clauses (A) through (C) above, individually, an “Acquisition Proposal”), or (ii) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company foregoing.
(b) Sellers shall, and shall direct its cause their Affiliates (including each Company Group Member) and the Representatives of Sellers and their Affiliates (including each Company Group Member) to, (i) immediately cease any and cause to be terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly Acquisition Proposal or potential Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, (ii) request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to prompt return or destroy destruction of all Confidential Information confidential information previously furnished with respect to such person by any Acquisition Proposal or on behalf potential Acquisition Proposal, and (iii) not terminate, waive, amend, release or modify any provision of it, him any confidentiality or her prior standstill agreement to the date hereof. If the Company which Sellers or any of its their Affiliates (including each Company Group Member) or Representatives receives any inquiry or proposal is a party with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry Acquisition Proposal or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination potential Acquisition Proposal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Mach Natural Resources Lp)
Exclusivity. (a) From the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, the The Company shall not, and the Company shall direct cause the other Company Entities and its and their respective officers, directors, employees, Stockholders and Representatives not to, directly or indirectly, (Ai) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s businessfacilitate, or enter into encourage the submission of any Contract with, Acquisition Proposal or in accept any manner knowingly encourage, any proposal of, any person Acquisition Proposal; (other than BCAC and its affiliatesii) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions discussions, negotiations or other communications (as a sender thereof) regarding, or furnish to any person Person any information with respect to, or cooperate in take any way other action to knowingly facilitate or encourage any inquiries or the making of any proposal that would otherwise constitutes, or could reasonably be expected to lead to, any Alternative Transaction Acquisition Proposal, or otherwise knowingly cooperate in any way, knowingly assist or knowingly participate in, knowingly facilitate or knowingly encourage any effort or attempt by any other Person to seek to do any of the foregoing; or (Ciii) commenceenter into any agreement with respect to, continue or renew in connection with, any due diligence investigation regarding any Alternative Transaction; provided, that Acquisition Proposal. Immediately following the execution, execution and delivery and performance of this Agreement and Agreement, the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and the Company shall direct cause the other Company Entities and its and their respective officers, directors, employees, Stockholders and Representatives to, immediately cease any and cause to be terminated all existing discussions or discussions, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative Transactionof the foregoing. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement If any Person, whether or not in connection with its, his or her consideration capacity as an officer, director, employee, Stockholder or Representative of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives other Company Entity, takes any inquiry or proposal with respect action that the Company is obligated pursuant to an Alternative Transaction at any time prior this Section 5.03 to the Closingcause such Person not to take, then the Company shall be deemed for all purposes of this Agreement to have breached this Section 5.03. The Company shall, as promptly as practicable (and in no any event later than one (1) Business Day within 48 hours after the Company become aware obtains knowledge thereof), notify the Purchaser if any Acquisition Proposals, or any expressions of interest for the acquisition of the Business, are made, including the identity of the Person(s) making the inquiry or proposal or expression of interest and any other relevant parties and the terms and conditions of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary expression of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalinterest. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the The Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not takerelease any third party from, nor shall it permit or waive any of its affiliates or Representatives to take, whether directly or indirectlyprovision of, any action confidentiality or standstill agreement to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which it is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalparty.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier to occur of (i) the Closing and or (ii) the termination of this AgreementAgreement pursuant to section 13 below, the Company shall not, Shareholder will (and shall direct its Representatives the Shareholder will not cause or permit HCC or any of the Shareholder's agents or representatives to, directly or indirectly, ) (Ai) solicit, negotiate with, provide any nonpublic information regarding the Company’s businessinitiate, or enter into encourage the submission of any Contract withproposal or offer from any Person relating to the acquisition of any capital stock or other voting securities, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all substantial portion of the equity interests or assets assets, of the Company, whether by HCC (including any acquisition structured as a merger, sale of stock, sale of assets, business combination consolidation or otherwise share exchange) or (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shallShareholder will vote his HCC Shares in favor of any such acquisition structured as a merger, consolidation or share exchange. The Seller and shall direct its Representatives toShareholder will notify Kend▇▇ ▇▇▇mptly if any Person makes any proposal, immediately cease any and all existing discussions offer, inquiry, or negotiations with any person conducted heretofore contact, of which they become aware, with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than of the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofforegoing. If the Company Shareholder or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to HCC violate the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions covenants set forth in this Section 7.05(asection 5(h), or if, after this Agreement has been executed, the Shareholder and HCC are obligated to consummate the transactions contemplated and the Shareholder and HCC fail to do so, in either event, HCC and the Shareholder shall: (i) by pay Kend▇▇, ▇▇ liquidated damages, an amount equal to Three Percent (3%) of the Company Purchase Price; and (ii) reimburse Kend▇▇ ▇▇▇ all out-of-pocket expenses (including attorneys' and accountants' fees) Kend▇▇ ▇▇▇urs in connection with the transaction contemplated hereby. The foregoing liquidated damages provision shall not apply if (i) the transaction with Kend▇▇ ▇▇ consummated, or its Representatives shall be deemed (ii) if the transaction is not consummated due to be a breach of this Section 7.05(a) Agreement by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Kend▇▇.
(bi) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination ProposalIntentionally Left Blank.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kendle International Inc)
Exclusivity. Except as contemplated by Section 5.5, neither Seller nor any CenturyTel Entity shall (aand Seller shall not cause or permit any of its Affiliates or any CenturyTel Entity or Cellular Entity to) From the date of this Agreement and ending on the earlier of (i) solicit, initiate or encourage the Closing and (ii) the termination submission of this Agreementany proposal or offer from any Person relating to, the Company shall notor cause or allow to occur, and shall direct its Representatives not toany Acquisition with respect to or involving a CenturyTel Entity, Cellular Entity or any Affiliate of Seller that owns or Controls, directly or indirectly, any Shares, Affiliate Assets, Cellular Interests or other assets, properties or rights of the Business, (Aii) solicitcause or allow to occur any change of Control of any CenturyTel Entity, negotiate with, provide any nonpublic information regarding the Company’s businessCellular Entity, or enter into any Contract withAffiliate of Seller that owns or Controls, directly or indirectly, any Shares, Affiliate Assets, Cellular Interests or other assets, properties or rights of the Business, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliatesiii) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, assist or cooperate participate in or facilitate in any way that would otherwise reasonably be expected other manner any effort or attempt by any Person to lead to, do or seek any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)foregoing. The Company shallIf any Person makes any proposal, and shall direct its Representatives tooffer, immediately cease any and all existing discussions inquiry or negotiations with any person conducted heretofore contact with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposalforegoing, and Seller will immediately provide BCAC Buyer with a copy (or, if not in writing, a written description of any the terms and other details) of such written proposal, offer, inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposalcontact. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(aNotwithstanding clause (ii) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) 5.12, a change of Control of Seller by way of merger, consolidation or reorganization in which the Company. For claritySeller is a constituent corporation or party to such transaction shall not be prohibited by this Section if the successor corporation or entity (and, if the successor corporation or entity is not the ultimate parent corporation or entity as a result of such transaction, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction ultimate parent corporation or entity) expressly assumes in writing all of the terms of this Section 7.05.
(b) From Seller's obligations under and after the date hereof until the Effective Time or, if earlier, the termination of agrees to comply with this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on Until the earlier of (i) the Closing and (ii) the termination of this AgreementAgreement or the consummation of the Closing, the Company shall not, and shall direct not authorize or permit any of its Affiliates or any of its or their Representatives not to, directly or indirectly, (Ai) encourage, solicit, negotiate withinitiate, provide any nonpublic information facilitate or continue inquiries regarding the Company’s business, or an Acquisition Proposal; (ii) enter into any Contract discussions or negotiations with, or in provide any manner knowingly encourageinformation to, any proposal of, any person Person concerning a possible Acquisition Proposal; (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (Biii) enter into any agreement regarding, continue agreements or otherwise participate in other instruments (whether or not binding) regarding an Acquisition Proposal; or (iv) furnish any discussions regarding, or furnish to any person any material nonpublic information with respect to, assist or cooperate participate in, or facilitate in any way that would otherwise reasonably be expected to lead toother manner, any Alternative Transaction effort or (C) commence, continue attempt by any Person to do or renew any due diligence investigation regarding any Alternative Transaction; provided, that seek to do anything prohibited for the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of Company in this Section 7.05(a)5.15. The Company shallshall immediately cease and cause to be terminated, and shall direct cause its Affiliates and all of its and their respective Representatives to, to immediately cease any and cause to be terminated, all existing discussions or negotiations with any person Persons conducted heretofore with respect to to, or that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean any Alternative Transactioninquiry, proposal or offer from any Person (other than Parent or any of its Affiliates) concerning (A) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving the Company; (B) the issuance or acquisition of shares of capital stock or other equity securities of the Company; or (C) the sale, lease, exchange or other disposition of any significant portion of the Company’s properties or assets. The Company also agrees shall, and shall cause its controlled Affiliates to, and each such foregoing Person shall cause its respective Representatives to, promptly (x) notify any party with which such discussions or negotiations were being held of such termination described above; and (y) request in writing that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior all Persons to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If whom nonpublic information concerning the Company or any of its Representatives receives any inquiry Subsidiaries has been distributed on or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, of this Agreement return or which is reasonably likely destroy such information to give rise to or result in, a Business Combination Proposalthe Company as soon as possible.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (SoFi Technologies, Inc.)
Exclusivity. (a) From The Company acknowledges and agrees that, commencing on the date of this Agreement and ending on until the earlier of (i) the Closing or the date on which this Agreement has been terminated by its terms (the “Exclusivity Period”), Purchaser shall have the sole and (ii) exclusive right to consummate the termination of transactions contemplated by this Agreement.
(b) Without limiting the generality of the foregoing, the Company agrees that, unless this Agreement is terminated by its terms, the Company shall not, not (and shall direct not permit any of its Representatives not Subsidiaries and/or any Person acting on its behalf to), directly or indirectly, (Ai) solicit, negotiate with, provide initiate or encourage the submission of any nonpublic information regarding proposal or offer from any Person (including any of its or the Company’s businessrespective officers, or enter into any Contract withdirectors, or in any manner knowingly encouragepartners, any proposal ofmembers, any person (shareholders, Affiliates, employees, agents and other than BCAC and its affiliatesrepresentatives) relating to any acquisition and/or assignment of a potential acquisition material portion of all the assets of, or substantially all any of the equity interests or assets in, any of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise Purchased Business Subsidiaries (an “Alternative TransactionAcquisition Proposal”), ) or (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person other 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 to do or seek to do any of the foregoing.
(c) The Company represents that would otherwise reasonably be expected it has suspended (and has caused the Company and/or any Person acting on its behalf to lead tosuspend), any Alternative Transaction or and shall cease for the duration of the Exclusivity Period, all contacts, discussions and negotiations with third parties (Cother than Purchaser and its Affiliates, agents and representatives) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)Acquisition Proposal. The Company shallshall promptly notify Purchaser if any such Acquisition Proposal, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal contact with any Person with respect to an Alternative Transaction at thereto (including any time prior to the Closing, then Person with whom the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of has already had such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representativesdiscussions), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposalmade.
Appears in 1 contract
Exclusivity. (ai) From MH agrees that, commencing on the date of this Agreement and ending on until the earlier of (i) the Closing or the date on which this Agreement has been terminated by its terms (the “Exclusivity Period”), MH shall not (and (ii) the termination of this AgreementMH shall not cause or permit any Affiliate, the Company shall not, and shall direct Representative or any other Person acting on its Representatives not behalf to), directly or indirectly, through any Representative, shareholder, partner, Affiliate or otherwise, (A) solicit, negotiate withinitiate or knowingly encourage the submission of any MH Acquisition Proposal from any Person (including any of its partners, provide any nonpublic information regarding the Company’s businessshareholders, Affiliates or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”Representatives), (B) enter into provide any agreement regardingconfidential information or data with respect to the S&P Index Business to any Person other than to the other parties to this Agreement and their Affiliates and Representatives in furtherance of an MH Acquisition Proposal, continue or otherwise (C) participate in any discussions or negotiations regarding, or furnish to any person other 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 to do or seek to do any of the foregoing with respect to an MH Acquisition Proposal; provided, that, subject to Section 5.05, MH may inform its shareholders and their Representatives and explain to such Persons the terms of this Agreement and the other Transaction Agreements and the terms and conditions provided hereby and thereby, or (D) enter into any agreement, arrangement or understanding with respect to any MH Acquisition Proposal (including any letter of intent, agreement in principle, memorandum of understanding, confidentiality agreement, expense reimbursement agreement, acquisition agreement, contribution agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or relating to, or intended to, or that would otherwise reasonably be expected to lead to, any Alternative Transaction MH Acquisition Proposal, or that is intended or that could reasonably be expected to result in the abandonment, termination or failure to consummate the transactions contemplated by this Agreement).
(ii) CME Group agrees that, during the Exclusivity Period, CME Group shall not (and CME Group shall not cause or permit any Affiliate, Representative or any other Person acting on its behalf to), directly or indirectly, through any Representative, shareholder, partner, Affiliate or otherwise, (A) solicit, initiate or knowingly encourage the submission of any CME Group Acquisition Proposal from any Person (including any of its partners, shareholders, Affiliates or Representatives), (B) provide any confidential information or data with respect to the CME Group Businesses to any Person other than to the other parties to this Agreement and their Affiliates and Representatives in furtherance of a CME Group Acquisition Proposal, (C) commenceparticipate in any discussions or negotiations regarding, continue or renew furnish to any due diligence investigation regarding other Person any Alternative Transactioninformation with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the foregoing with respect to a CME Group Acquisition Proposal; provided, that that, subject to Section 5.05, CME Group may inform its shareholders and their Representatives and explain to such Persons the execution, delivery and performance terms of this Agreement and the other Transaction Documents Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shallterms and conditions provided hereby and thereby or (D) enter into any agreement, and shall direct its Representatives to, immediately cease any and all existing discussions arrangement or negotiations with any person conducted heretofore understanding with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person CME Group Acquisition Proposal (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality including any letter of intent, agreement in connection with itsprinciple, his memorandum of understanding, confidentiality agreement, expense reimbursement agreement, acquisition agreement, contribution agreement, option agreement, joint venture agreement, partnership agreement or her consideration of acquiring other agreement constituting or relating to, or intended to, or that would reasonably be expected to lead to, any CME Group Acquisition Proposal, or that is intended or that could reasonably be expected to result in the Company abandonment, termination or failure to return or destroy all Confidential Information furnished to such person consummate the transactions contemplated by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Agreement).
(b) From Each of MH and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall CME Group represents that it permit any of has suspended (and has caused its affiliates or Affiliates and Representatives to takesuspend), whether directly or indirectlyand shall cease for the duration of the Exclusivity Period, any action to solicitall contacts, initiate, continue or engage in discussions or and negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person third parties (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating other parties to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders this Agreement and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates Affiliates and Representatives) conducted prior to regarding any Acquisition Proposal. Each of MH and CME Group shall promptly, but in any event within two (2) days of its occurrence, notify the date hereof other party if any such Acquisition Proposal, or any inquiry or contact with any Person with respect tothereto (including any Person with whom the party that receives the Acquisition Proposal has already had such discussions), is made and will provide to such party the identity of such Person, the nature of the offer, inquiry or which is reasonably likely to give rise to or result in, a Business Combination Proposalproposal.
Appears in 1 contract
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the Date or termination of this AgreementAgreement in accordance with its terms, the Company shall not, and shall direct its Representatives cause the Subsidiaries and their respective officers, directors, employees, agents, partners, Affiliates and other representatives not to, directly or indirectly, (A) solicit, negotiate withinitiate, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, assist or respond to the submission of any proposal ofor offer from any Person relating, with respect to the Company or any person Subsidiary, to any (other than BCAC and its affiliatesa) relating to a potential liquidation, dissolution or recapitalization, (b) merger or consolidation, (c) acquisition or purchase of all or substantially all a significant portion of the assets of, or any equity interests interest in, the Company or assets of the Company, whether by merger, sale of stock, sale of assets, any Subsidiary or (d) similar transaction or business combination or otherwise (an a “Alternative Competing Transaction”), (B) enter into any agreement regarding, continue or otherwise nor participate in any or continue any ongoing discussions or negotiations regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected to lead towith, or assist or participate in, facilitate or encourage, any Alternative effort or attempt by any Person to pursue or effect a Competing Transaction or (C) commence, continue or renew enter into any due diligence investigation regarding any Alternative agreement with respect to a Competing Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct cause all Persons acting on its Representatives behalf to, (i) immediately cease any existing activities, discussions and all existing discussions or negotiations with any person conducted heretofore Persons with respect to any Alternative Transactionof the foregoing, (ii) not make any other filings with the SEC other than in connection with withdrawing the Registration Statement, which it may elect to do at its option, and (iii) immediately cease all marketing activities in connection with the contemplated initial public offering of equity securities of the Company. The As soon as reasonably practicable after the date hereof, the Company also agrees that it will promptly request shall instruct each person Person (other than the parties hereto Parent and Merger Sub and their respective Representativesrepresentatives) in possession of confidential information about the Company that has prior was furnished pursuant to the date hereof executed a confidentiality agreement within the prior twelve (12) months in connection with its, his any actual or her consideration of acquiring potential proposal by such Person to acquire the Company (or any portion thereof, other than pursuant to the offering contemplated by the Registration Statement) to promptly return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05information.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From Each Seller Party and the date of this Company agree that between the Agreement Date and ending on the earlier of (i) the Closing and (ii) the termination of this Agreement, such Seller Party and the Company shall not, and each shall direct its take all action necessary to ensure that their respective Affiliates and Representatives not toshall not, directly or indirectly, ,
(Aa) solicit, negotiate withinitiate, provide consider, encourage or accept any nonpublic information regarding the Company’s business, other proposals or enter into offers from any Contract with, or in any manner knowingly encourage, any proposal of, any person Person (other than BCAC and its affiliatesi) relating to a potential any direct or indirect acquisition or purchase of all or substantially all any portion of the capital stock or other equity interests or ownership interest of the Company or assets of the Company, whether by other than inventory to be sold in the Ordinary Course, (ii) to enter into any merger, sale of stock, sale of assets, consolidation or other business combination involving all or otherwise any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company or (an “Alternative Transaction”iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction involving all or any portion of the capital stock or other equity or ownership interest of the Company or assets of the Company (the foregoing clauses (i), (Bii) enter into any agreement regardingand (iii), continue or otherwise a “Company Sale Transaction”) (for the avoidance of doubt, a Company Sale Transaction shall exclude a Seller CIC Transaction and the Reorganization); or
(b) participate in any discussions discussions, conversations, negotiations or other communications regarding, or furnish to any person other Person any information with respect to, or otherwise cooperate in any way that would otherwise reasonably be expected way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to lead to, seek to do any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that of the execution, delivery and performance of this Agreement foregoing. Each Seller Party and the Transaction Documents Company immediately shall cease and the consummation of the Transactions shall not cause to be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and terminated all existing discussions or discussions, conversations, negotiations and other communications with any person Persons conducted heretofore with respect to any Alternative a Company Sale Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring Seller and/or the Company to return shall notify Purchaser promptly, but in any event within 24 hours, orally and in writing if any such proposal or destroy all Confidential Information furnished to such person by offer, or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal other contact with any Person with respect to an Alternative Transaction at any time prior a Company Sale Transaction, is made. Any such notice to the Closing, then the Company Purchaser shall promptly (and indicate in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case reasonable detail the identity of the person Person making such proposal, offer, inquiry or other contact and the terms and conditions of such proposal, offer, inquiry or other contact. Without limiting Each Seller Party and the Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which such Seller Party or the Company is a party relating to a Company Sale Transaction, without the prior written consent of Purchaser. Notwithstanding the foregoing, the parties agree that any violation of the restrictions set forth nothing in this Section 7.05(a6.3 or any other provision in this Agreement shall prohibit or limit a Seller Party from soliciting, initiating, considering, encouraging or accepting any other proposals or offers or participating in any discussions, conversations, negotiations or other communications regarding a Seller CIC Transaction with any third-party (and from consummating any such Seller CIC Transaction) by provided that any such Seller CIC Transaction does not prevent, prohibit, challenge or materially hinder or delay the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction consummation of the terms of this Section 7.05Transaction.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date Interim Period, none of this Agreement and ending the Svac Parties, on the earlier of (i) the Closing and (ii) the termination of this Agreementone hand, or the Company shall notand its Subsidiaries, and shall direct its on the other hand, will, nor will they authorize or permit their respective Representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets, business combination or otherwise (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a). The Company shall, and shall direct its Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry or proposal) notify such person in writing that the Company is subject to an exclusivity agreement with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties agree that any violation of the restrictions set forth in this Section 7.05(a) by the Company or its Representatives shall be deemed to be a breach of this Section 7.05(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05.:
(bi) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, take any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), Person concerning, relating to or which is intended or is would reasonably likely be expected to give rise to or result inlead to, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transactionan Acquisition Proposal;
(ii) in the case of Svac, fail to include the Svac Board Recommendation in (or remove from) the Proxy Statement; or
(iii) in the case of Svac, except as otherwise permitted by this Agreement, withhold, withdraw, qualify, amend or modify (or publicly propose or announce any intention or desire to withhold, withdraw, qualify, amend or modify), in a “Business Combination Proposal”) other than with manner adverse to the Company, its stockholders the Svac Board Recommendation.
(b) Each of the Company and the Svac Parties, shall promptly, and in any event within one (1) Business Day of the date of this Agreement:
(i) terminate access of any third Person (other than the Company or the Svac Parties and/or any of their respective affiliates Affiliates or Representatives) to any data room (virtual or actual) containing any confidential information with respect to the Company or Svac;
(ii) immediately cease and Representatives. BCAC shallcause to be terminated, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders their and their respective affiliates Subsidiaries’ Representatives to immediately cease and Representatives) conducted prior cause to the date hereof be terminated, all existing activities, discussions, negotiations and communications, if any, with any Persons with respect to, or which is reasonably likely to give rise to or result in, any Acquisition Proposal; and
(iii) request the return or destruction of any confidential information provided to any Person in connection with a Business Combination prospective Acquisition Proposal (subject in each case to the terms of any applicable confidentiality agreement) and, in connection therewith, shall, if the applicable confidentiality or non-disclosure agreement so allows, request that all such Persons provide prompt written certification of the return or destruction of all such information.
(c) Promptly upon receipt of an unsolicited Acquisition Proposal, each of the Svac Parties and the Company shall notify the other Party thereof, which notice shall include a written summary of the material terms of such unsolicited proposal. Notwithstanding the foregoing, the Parties may respond to any unsolicited Acquisition Proposal only by indicating that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Sports Ventures Acquisition Corp.)
Exclusivity. (a) From the date of this Agreement and ending on until the earlier of (i) the Closing and (ii) the termination of this AgreementClosing, the Securityholders and the Company shall will not, and shall direct its Representatives will cause their respective Affiliates or any of their Affiliates’ representatives not to, directly or indirectly, indirectly through any representative: (Ai) solicit, negotiate withencourage, provide facilitate or initiate submission of any nonpublic information regarding inquiry, proposal or offer from any Person relating to any transaction involving any sale or transfer of the Company’s business, or enter into any Contract with, or in any manner knowingly encourage, any proposal of, any person assets (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all outside of the equity interests ordinary course of business) or assets capital stock of the Company, whether by direct transfer, merger, sale of stockinvestment, sale of assetsconsolidation, business combination recapitalization, reorganization or otherwise (an collectively, “Alternative TransactionRestricted Transactions”), (Bii) enter into, participate in or continue any discussions or negotiations (except with Parent) regarding, or furnish any information to or cooperate with any Person (other than Parent) with respect to, any Restricted Transactions, (iii) enter into any agreement regarding, continue or otherwise participate (except with Parent) relating in any discussions regardingmanner to any Restricted Transaction, or furnish (iv) disclose or provide access to any person non-public information concerning the Company’s business, assets or properties or afford to any information with respect toPerson (other than the Parent) access to its properties, books or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, that the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)records. The Company shalland the Securityholders will notify Parent immediately if any Person makes any proposal, and shall direct its Representatives tooffer, immediately cease any and all existing discussions inquiry or negotiations with any person conducted heretofore contact with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person of the foregoing (whether solicited or unsolicited).
(b) In connection with the foregoing, the Company, the Securityholders and their respective representatives shall immediately cease any existing or continuing discussion or negotiations relating to any Restricted Transaction (other than with the parties hereto Parent), and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement provision of any information in connection with its, his or her consideration of acquiring the Company therewith (including access to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereofany data rooms). If the Company Company, the Securityholders or any of its Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closingtheir respective representatives, then the Company shall promptly (and in no event later than one (1) Business Day after the Company become aware of such inquiry a bona fide offer for the Company or proposalits business (including any Restricted Transaction) during the Exclusivity Period, the Company and the Securityholders shall promptly notify such person Parent in writing that the Company is subject to an exclusivity agreement of such offer or other expression of interest, with respect to the sale of the Company that prohibits it from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry notice including the material terms and conditions of such offer or proposal or a detailed summary of any such verbal inquiry or proposalinquiry, including in each case the identity of the person Person making such inquiry the offer or proposalinquiry. Without limiting the foregoing, the parties agree it is understood that any violation of the restrictions set forth in this Section 7.05(a) above by any representative of the Company or its Representatives any Securityholder shall be deemed to be a breach of this Section 7.05(a) these restrictions by the Company. For clarity, Company and the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Securityholders.
(b) From and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement, BCAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction
(a “Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than with the Company, its stockholders and their respective affiliates and Representatives) conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 1 contract
Exclusivity. (a) From During the date of this Agreement and ending on the earlier of (i) the Closing and (ii) the termination of this AgreementInterim Period, the Company Sellers shall not, and shall direct its cause the Hostess Entities and their respective Representatives not to, directly or indirectly, (Ai) enter into, knowingly solicit, negotiate with, provide initiate or continue any nonpublic information regarding the Company’s business, discussions or enter into any Contract negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any manner knowingly encouragenegotiations with, or provide any information to, or otherwise cooperate in any way with, any proposal ofPerson or other entity or group, concerning any person (other than BCAC and its affiliates) relating to a potential acquisition sale of all or substantially all of the equity interests or any material assets of the CompanyHostess Entities or any of the outstanding Hostess Securities or any conversion, whether by mergerconsolidation, sale of stockliquidation, sale of assets, business combination dissolution or otherwise similar transaction involving the Hostess Entities other than with the Buyer and its Representatives (an “Alternative Transaction”), (Bii) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person Person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (Ciii) commence, continue or renew any due diligence investigation regarding any Alternative Transaction; provided, provided that the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the Transactions shall not be deemed a violation of this Section 7.05(a)6.3. The Company Sellers shall, and shall direct its cause their respective Affiliates and respective Representatives to, immediately cease any and all existing discussions or negotiations with any person Person conducted heretofore with respect to any Alternative Transaction. The Company also agrees that it will promptly request each person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its, his or her consideration of acquiring the Company to return or destroy all Confidential Information furnished to such person by or on behalf of it, him or her prior to the date hereof. If the Company Sellers, the Hostess Entities or any of its their respective Representatives receives any inquiry or proposal with respect to an Alternative Transaction at any time prior to the Closing, then the Company Sellers shall promptly (and in no event later than one (1) Business Day 24 hours after the Company Sellers become aware of such inquiry or proposal) (A) advise the Buyer orally and in writing of such inquiry or proposal (including the identity of the Person making such inquiry or submitting such proposal, and the terms thereof), (B) provide the Buyer a copy of such inquiry or proposal, if in writing, and (C) notify such person Person in writing that the Company is Sellers are subject to an exclusivity agreement with respect to the sale of the Company Hostess Entities that prohibits it them from considering such inquiry or proposal, and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal, including in each case the identity of the person making such inquiry or proposal. Without limiting the foregoing, the parties Parties agree that any violation of the restrictions set forth in this Section 7.05(a6.3(a) by any of the Company Sellers or its their respective Affiliates or Representatives shall be deemed to be a breach of this Section 7.05(a6.3(a) by the Company. For clarity, the Company may inform any person making an unsolicited proposal regarding an Alternative Transaction of the terms of this Section 7.05Sellers.
(b) From and after During the date hereof until the Effective Time or, if earlierInterim Period, the termination of this AgreementBuyer shall not, BCAC and shall cause its Affiliates and their respective Representatives not taketo, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly, any action to (i) enter into, knowingly solicit, initiate, initiate or continue or engage in any discussions or negotiations with, or knowingly encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any way with, any Person or other entity or group, concerning any Business Combination Proposal, (ii) enter into any agreement withregarding, continue or otherwise participate in any discussions or negotiations regarding, or encourage, respond, provide furnish to any Person any information to or commence due diligence with respect to, or cooperate in any person (other than the Company, its stockholders and/or any of their affiliates or Representatives), concerning, relating way that would otherwise reasonably be expected to or which is intended or is reasonably likely to give rise to or result inlead to, any offerBusiness Combination Proposal or (iii) commence, inquiry, proposal continue or indication of interest, written or oral relating to renew any business combination transaction
(a “due diligence investigation regarding any Business Combination Proposal”) other than with the Company, its stockholders and their respective affiliates and Representatives. BCAC The Buyer shall, and shall cause each of its affiliates Affiliates and their respective Representatives to, immediately cease any and all existing discussions or negotiations with any person (other than Person conducted heretofore with respect to any Business Combination Proposal. If the CompanyBuyer, its stockholders and Affiliates or any of their respective affiliates and Representatives) conducted Representatives receives any inquiry or proposal with respect to a Business Combination Proposal at any time prior to the date hereof with respect toClosing, then the Buyer shall promptly (and in no event later than 24 hours after the Buyer becomes aware of such inquiry or which is reasonably likely proposal) (A) advise the Sellers’ Representative orally and in writing of such inquiry or proposal (including the identity of the Person making such inquiry or submitting such proposal, and the terms thereof) and (B) provide the Sellers’ Representative a copy of such inquiry or proposal, if in writing. Without limiting the foregoing, the Parties agree that any violation of the restrictions set forth in this Section 6.3(b) by any of the Buyer or its Affiliates or their respective Representatives shall be deemed to give rise to or result in, be a Business Combination Proposalbreach of this Section 6.3(b) by the Buyer.
Appears in 1 contract
Sources: Master Transaction Agreement (Gores Holdings, Inc.)