Common use of No Solicitation of Alternative Proposals Clause in Contracts

No Solicitation of Alternative Proposals. (a) Commencing on the date hereof, the Company shall (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ and Affiliates’ Representatives to) (i) immediately cease and terminate all existing discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to or that could reasonably be expected to lead to an Alternative Transaction (as hereinafter defined), (ii) use its commercially reasonable to obtain the destruction of, in accordance with the terms of any applicable confidentiality agreement, any nonpublic information previously furnished by the Company, its subsidiaries or Affiliates, or any of their respective Representatives to any third-party (other than the Excluded Parties) in connection with any Alternative Proposal or any discussions, correspondence or negotiations relating to a potential Alternative Transaction, and prevent any such third-party (other than the Excluded Parties) from accessing any online data rooms containing nonpublic information regarding the Company, and (iii) comply with this Section 6.2. (b) During the period commencing on the date of this Agreement and continuing until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1 (the “No-Shop Period”), the Company shall not (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ and Affiliates’ Representatives not to) directly or indirectly (i) solicit, initiate, encourage or take any other action designed to solicit an Alternative Transaction, (ii) participate in any written correspondence, discussions or negotiations regarding any Alternative Transaction, (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Transaction or (iv) furnish any nonpublic information to any third parties (other than the Excluded Parties). (c) Notwithstanding anything to the contrary that may be set forth in Section 6.2(b), if, during the No-Shop Period, the Board of Directors determines in good faith that it is required to authorize such actions to comply with its fiduciary duties under any applicable Law, including the Bankruptcy Code, the Company or any of its Representatives may take any of the actions referred to in clauses (ii) and (iv) of Section 6.2(b) with respect to any Person that during the No-Shop Period delivered a written, unsolicited bona fide Alternative Proposal so long as (A) the Company and its Representatives are not in material violation of this Section 6.2, and (B) the Board of Directors has concluded that such Alternative Proposal is a Superior Proposal or is reasonably likely to lead to a Superior Proposal. In addition, at any time during the No-Shop Period, so long as the Company and its Representatives are not in violation of this Section 6.2, the Company, its subsidiaries or any of their respective Representatives will be permitted to execute an agreement providing for a Superior Proposal or recommend any such Superior Proposal to the creditors or interest holders of the Company only if (i) the Company shall have delivered such Superior Proposal to the Investors pursuant to Section 6.2(d); (ii) the Investors do not, within five (5) Business Days of receipt of such Superior Proposal, make an offer to revise the transactions contemplated by this Agreement and the Plan, such that in the good faith opinion of the Board of Directors (in consultation with its financial advisors and legal counsel) such revised transaction provides an equal or higher transaction value or is otherwise more favorable to the Company and its creditors and interest holders than the Superior Proposal; (iii) the Company pays the fees and expenses of the Investors as provided in Section 8.2 including, without limitation, the Break-Up Fee. For the avoidance of doubt, in determining whether a revised transaction proposed by the Investors in accordance with clause (ii) of the immediately preceding sentence “provides an equal or higher transaction value,” the Investors shall be given a dollar-for-dollar credit of $15 million (representing the total amount of the Break-Up Fee and Expenses potentially payable by the Company to the Investors pursuant to Section 8.2 hereof), such that, for example, if the Company were to receive a Superior Proposal with a transaction value of $250 million, the Investors’ revised proposal would be “equal” to such Superior Proposal if it had a transaction value of $235 million. (d) From the date hereof until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1, the Company shall promptly (and in no event later than two (2) days) deliver to the Investors and the Excluded Parties all written communications delivered to or received by the Company or its Representatives making or materially modifying any Alternative Proposal, including without limitation copies of all expressions of interest, term sheets, letters of intent, offers, proposed agreements or otherwise, and shall regularly update (not less than once every week) the Investors and the Excluded Parties concerning such matters. No Person who has made an Alternative Proposal shall be provided non-public information by the Company unless such Person has executed a customary confidentiality agreement; provided that such confidentiality agreement shall (a) be on no more favorable terms to the third-party than the terms of any confidentiality agreement then in effect between the Company and any of the Investors, and (b) not prohibit the Company from delivering any notice required by this Section 6.2(d). In addition, the Company and its Representatives shall provide the Investors and the Excluded Parties two (2) days prior written notice before initially delivering any non-public information in connection with an Alternative Proposal or the granting of access by the Company or its Representatives to the properties, books or records of the Company to any Person that informs the Company or its Representatives that it is considering making, or has made an Alternative Proposal. The Company agrees that it shall not, and shall cause the Company’s subsidiaries not to, enter into any confidentiality agreement or other agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to the Investors and the Excluded Parties. The Company agrees that neither it nor any of its subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its subsidiaries is a party and that it and its subsidiaries shall enforce the provisions of any such agreement, except to the extent that the Board of Directors determines (after consultation with its financial advisors and legal counsel) that acting in such manner would be inconsistent with its fiduciary duties under applicable Law. (e) As used in this Agreement, “Alternative Transaction” shall mean any actual or proposed transaction or offer for a transaction, other than as contemplated by the Plan, involving any or all of (i) a plan of reorganization or other financial and/or corporate restructuring of any or all of the Debtors (other than an Excluded Restructuring), (ii) the issuance, sale, transfer, exchange or other disposition by the Debtors of any equity or debt interests (other than common stock issued in respect of any employee stock options), or any material assets, of the Debtors, (iii) a merger, consolidation, business combination, liquidation, recapitalization or refinancing, (iv) any similar transaction involving any or all of the Debtors, or (v) any transaction through which the Debtors exit bankruptcy. “Alternative Proposal” shall mean a proposal relating to an Alternative Transaction.

No Solicitation of Alternative Proposals. (a) Commencing on the date hereof, the Company shall (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ ' and Affiliates’ ' Representatives to) (i) immediately cease and terminate all existing discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to or that could reasonably be expected to lead to an Alternative Transaction (as hereinafter defined), (ii) use its commercially reasonable to obtain the destruction of, in accordance with the terms of any applicable confidentiality agreement, any nonpublic information previously furnished by the Company, its subsidiaries or Affiliates, or any of their respective Representatives to any third-party (other than the Excluded Parties) in connection with any Alternative Proposal or any discussions, correspondence or negotiations relating to a potential Alternative Transaction, and prevent any such third-party (other than the Excluded Parties) from accessing any online data rooms containing nonpublic information regarding the Company, and (iii) comply with this Section 6.2. (b) During the period commencing on the date of this Agreement and continuing until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1 (the “"No-Shop Period”"), the Company shall not (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ ' and Affiliates’ ' Representatives not to) directly or indirectly (i) solicit, initiate, encourage or take any other action designed to solicit an Alternative Transaction, (ii) participate in any written correspondence, discussions or negotiations regarding any Alternative Transaction, (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Transaction or (iv) furnish any nonpublic information to any third parties (other than the Excluded Parties). (c) Notwithstanding anything to the contrary that may be set forth in Section 6.2(b), if, during the No-Shop Period, the Board of Directors determines in good faith that it is required to authorize such actions to comply with its fiduciary duties under any applicable Law, including the Bankruptcy Code, the Company or any of its Representatives may take any of the actions referred to in clauses (ii) and (iv) of Section 6.2(b) with respect to any Person that during the No-Shop Period delivered a written, unsolicited bona fide Alternative Proposal so long as (A) the Company and its Representatives are not in material violation of this Section 6.2, and (B) the Board of Directors has concluded that such Alternative Proposal is a Superior Proposal or is reasonably likely to lead to a Superior Proposal. In addition, at any time during the No-Shop Period, so long as the Company and its Representatives are not in violation of this Section 6.2, the Company, its subsidiaries or any of their respective Representatives will be permitted to execute an agreement providing for a Superior Proposal or recommend any such Superior Proposal to the creditors or interest holders of the Company only if (i) the Company shall have delivered such Superior Proposal to the Investors pursuant to Section 6.2(d); (ii) the Investors do not, within five (5) Business Days of receipt of such Superior Proposal, make an offer to revise the transactions contemplated by this Agreement and the Plan, such that in the good faith opinion of the Board of Directors (in consultation with its financial advisors and legal counsel) such revised transaction provides an equal or higher transaction value or is otherwise more favorable to the Company and its creditors and interest holders than the Superior Proposal; (iii) the Company pays the fees and expenses of the Investors as provided in Section 8.2 including, without limitation, the Break-Up Fee. For the avoidance of doubt, in determining whether a revised transaction proposed by the Investors in accordance with clause (ii) of the immediately preceding sentence “"provides an equal or higher transaction value,” " the Investors shall be given a dollar-for-dollar credit of $15 million (representing the total amount of the Break-Up Fee and Expenses potentially payable by the Company to the Investors pursuant to Section 8.2 hereof), such that, for example, if the Company were to receive a Superior Proposal with a transaction value of $250 million, the Investors’ ' revised proposal would be “"equal” " to such Superior Proposal if it had a transaction value of $235 million. (d) From the date hereof until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1, the Company shall promptly (and in no event later than two (2) days) deliver to the Investors and the Excluded Parties all written communications delivered to or received by the Company or its Representatives making or materially modifying any Alternative Proposal, including without limitation copies of all expressions of interest, term sheets, letters of intent, offers, proposed agreements or otherwise, and shall regularly update (not less than once every week) the Investors and the Excluded Parties concerning such matters. No Person who has made an Alternative Proposal shall be provided non-public information by the Company unless such Person has executed a customary confidentiality agreement; provided that such confidentiality agreement shall (a) be on no more favorable terms to the third-party than the terms of any confidentiality agreement then in effect between the Company and any of the Investors, and (b) not prohibit the Company from delivering any notice required by this Section 6.2(d). In addition, the Company and its Representatives shall provide the Investors and the Excluded Parties two (2) days prior written notice before initially delivering any non-public information in connection with an Alternative Proposal or the granting of access by the Company or its Representatives to the properties, books or records of the Company to any Person that informs the Company or its Representatives that it is considering making, or has made an Alternative Proposal. The Company agrees that it shall not, and shall cause the Company’s 's subsidiaries not to, enter into any confidentiality agreement or other agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to the Investors and the Excluded Parties. The Company agrees that neither it nor any of its subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its subsidiaries is a party and that it and its subsidiaries shall enforce the provisions of any such agreement, except to the extent that the Board of Directors determines (after consultation with its financial advisors and legal counsel) that acting in such manner would be inconsistent with its fiduciary duties under applicable Law. (e) As used in this Agreement, “"Alternative Transaction” " shall mean any actual or proposed transaction or offer for a transaction, other than as contemplated by the Plan, involving any or all of (i) a plan of reorganization or other financial and/or corporate restructuring of any or all of the Debtors (other than an Excluded Restructuring), (ii) the issuance, sale, transfer, exchange or other disposition by the Debtors of any equity or debt interests (other than common stock issued in respect of any employee stock options), or any material assets, of the Debtors, (iii) a merger, consolidation, business combination, liquidation, recapitalization or refinancing, (iv) any similar transaction involving any or all of the Debtors, or (v) any transaction through which the Debtors exit bankruptcy. “"Alternative Proposal” " shall mean a proposal relating to an Alternative Transaction.

No Solicitation of Alternative Proposals. (a) Commencing on the date hereof, the Company shall (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ ' and Affiliates’ ' Representatives to) (i) immediately cease and terminate all existing discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to or that could reasonably be expected to lead to an Alternative Transaction (as hereinafter defined), (ii) use its commercially reasonable to obtain the destruction of, in accordance with the terms of any applicable confidentiality agreement, any nonpublic information previously furnished by the Company, its subsidiaries or Affiliates, or any of their respective Representatives to any third-party (other than the Excluded Parties) in connection with any Alternative Proposal or any discussions, correspondence or negotiations relating to a potential Alternative TransactionProposal, and prevent any such third-party (including all Excluded Parties other than the Excluded PartiesTennenbaum) from accessing any online data rooms containing nonpublic information nonpublix xxxxxxxxion regarding the Company, and (iii) comply with this Section 6.2. (b) During the period commencing on the date of this Agreement and continuing until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1 (the “"No-Shop Period”"), the Company shall not (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ ' and Affiliates’ ' Representatives not to) directly or indirectly (i) solicit, initiate, encourage or take any other action designed to solicit an Alternative Transaction, (ii) participate in any written correspondence, discussions or negotiations regarding any Alternative Transaction, (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Transaction or (iv) furnish any nonpublic information to any third parties (other than the Excluded Parties)parties. (c) Notwithstanding anything to the contrary that may be set forth in Section 6.2(b), if, during the No-Shop Period, the Board of Directors determines in good faith that it is required to authorize such actions to comply with its fiduciary duties under any applicable Law, including the Bankruptcy Code, the Company or any of its Representatives may take any of the actions referred to in clauses (ii) and (iv) of Section 6.2(b) with respect to any Person that during the No-Shop Period delivered a written, unsolicited bona fide Alternative Proposal so long as (A) the Company and its Representatives are not in material violation of this Section 6.2, and (B) the Board of Directors has concluded that such Alternative Proposal is a Superior Proposal or is reasonably likely to lead to a Superior Proposal. In addition, at any time during the No-Shop Period, so long as the Company and its Representatives are not in violation of this Section 6.2, the Company, its subsidiaries or any of their respective Representatives will be permitted to execute an agreement providing for a Superior Proposal or recommend any such Superior Proposal to the creditors or interest holders of the Company only if (i) the Company shall have delivered such Superior Proposal to the Investors pursuant to Section 6.2(d); (ii) the Investors do not, within five (5) Business Days of receipt of such Superior Proposal, make an offer to revise the transactions contemplated by this Agreement and the Plan, such that in the good faith opinion of the Board of Directors (in consultation with its financial advisors and legal counsel) such revised transaction provides an equal or higher transaction value or is otherwise more favorable to the Company and its creditors and interest holders than the Superior Proposal; (iii) the Company pays the fees and expenses of the Investors as provided in Section 8.2 including, without limitation, the Break-Up Fee. For the avoidance of doubt, in determining whether a revised transaction proposed by the Investors in accordance with clause (ii) of the immediately preceding sentence “provides an equal or higher transaction value,” the Investors shall be given a dollar-for-dollar credit of $15 million (representing the total amount of the Break-Up Fee and Expenses potentially payable by the Company to the Investors pursuant to Section 8.2 hereof), such that, for example, if the Company were to receive a Superior Proposal with a transaction value of $250 million, the Investors’ revised proposal would be “equal” to such Superior Proposal if it had a transaction value of $235 million. (d) From the date hereof until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1, the Company shall promptly (and in no event later than two (2) days) deliver to the Investors and the Excluded Parties all written communications delivered to or received by the Company or its Representatives making or materially modifying any Alternative Proposal, including without limitation copies of all expressions of interest, term sheets, letters of intent, offers, proposed agreements or otherwise, and shall regularly update (not less than once every week) the Investors and the Excluded Parties concerning such matters. No Person who has made an Alternative Proposal shall be provided non-public information by the Company unless such Person has executed a customary confidentiality agreement; provided that such confidentiality agreement shall (a) be on no more favorable terms to the third-party than the terms of any confidentiality agreement then in effect between the Company and any of the Investors, and (b) not prohibit the Company from delivering any notice required by this Section 6.2(d). In addition, the Company and its Representatives shall provide the Investors and the Excluded Parties two (2) days prior written notice before initially delivering any non-public information in connection with an Alternative Proposal or the granting of access by the Company or its Representatives to the properties, books or records of the Company to any Person that informs the Company or its Representatives that it is considering making, or has made an Alternative Proposal. The Company agrees that it shall not, and shall cause the Company’s 's subsidiaries not to, enter into any confidentiality agreement or other agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to the Investors and the Excluded PartiesInvestors. The Company agrees that neither it nor any of its subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its subsidiaries is a party and that it and its subsidiaries shall enforce the provisions of any such agreement, except to the extent that the Board of Directors determines (after consultation with its financial advisors and legal counsel) that acting in such manner would be inconsistent with its fiduciary duties under applicable Law. (e) As used in this Agreement, “"Alternative Transaction” " shall mean any actual or proposed transaction or offer for a transaction, other than as contemplated by the Plan, transaction involving any or all of (i) a plan of reorganization or other financial and/or corporate restructuring of any or all of the Debtors (Debtors, other than an Excluded Restructuring)the Plan, (ii) the issuance, sale, transfer, exchange or other disposition by the Debtors of any equity or debt interests (other than common stock issued in respect of any employee stock options)interests, or any material assets, assets of the Debtors, (iii) a merger, consolidation, business combination, liquidation, recapitalization or refinancing, (iv) any similar transaction involving any or all of the Debtors, or (v) any transaction through which the Debtors exit bankruptcy. “"Alternative Proposal” " shall mean a proposal relating to an Alternative Transaction.

No Solicitation of Alternative Proposals. (a) Commencing on the date hereof, the Company shall (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ and Affiliates’ Representatives to) (i) immediately cease and terminate all existing discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to or that could reasonably be expected to lead to an Alternative Transaction (as hereinafter defined), (ii) use its commercially reasonable to obtain the destruction of, in accordance with the terms of any applicable confidentiality agreement, any nonpublic information previously furnished by the Company, its subsidiaries or Affiliates, or any of their respective Representatives to any third-party (other than the Excluded Parties) in connection with any Alternative Proposal or any discussions, correspondence or negotiations relating to a potential Alternative Transaction, and prevent any such third-party (other than the Excluded Parties) from accessing any online data rooms containing nonpublic information regarding the Company, and (iii) comply with this Section 6.2. (b) During the period commencing on the date of this Agreement and continuing until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1 (the “No-Shop Period”), the Company shall not (and shall cause its subsidiaries, Affiliates, Representatives, and subsidiaries’ and Affiliates’ Representatives not to) directly or indirectly (i) solicit, initiate, encourage or take any other action designed to solicit an Alternative Transaction, (ii) participate in any written correspondence, discussions or negotiations regarding any Alternative Transaction, (iii) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Alternative Transaction or (iv) furnish any nonpublic information to any third parties (other than the Excluded Parties). (c) Notwithstanding anything to the contrary that may be set forth in Section 6.2(b), if, during the No-Shop Period, the Board of Directors determines in good faith that it is required to authorize such actions to comply with its fiduciary duties under any applicable Law, including the Bankruptcy Code, the Company or any of its Representatives may take any of the actions referred to in clauses (ii) and (iv) of Section 6.2(b) with respect to any Person that during the No-Shop Period delivered a written, unsolicited bona fide Alternative Proposal so long as (A) the Company and its Representatives are not in material violation of this Section 6.2, and (B) the Board of Directors has concluded that such Alternative Proposal is a Superior Proposal or is reasonably likely to lead to a Superior Proposal. In addition, at any time during the No-Shop Period, so long as the Company and its Representatives are not in violation of this Section 6.2, the Company, its subsidiaries or any of their respective Representatives will be permitted to execute an agreement providing for a Superior Proposal or recommend any such Superior Proposal to the creditors or interest holders of the Company only if (i) the Company shall have delivered such Superior Proposal to the Investors pursuant to Section 6.2(d); (ii) the Investors do not, within five (5) Business Days of receipt of such Superior Proposal, make an offer to revise the transactions contemplated by this Agreement and the Plan, such that in the good faith opinion of the Board of Directors (in consultation with its financial advisors and legal counsel) such revised transaction provides an equal or higher transaction value or is otherwise more favorable to the Company and its creditors and interest holders than the Superior Proposal; (iii) the Company pays the fees and expenses of the Investors as provided in Section 8.2 including, without limitation, the Break-Up Fee. For the avoidance of doubt, in determining whether a revised transaction proposed by the Investors in accordance with clause (ii) of the immediately preceding sentence “provides an equal or higher transaction value,” the Investors shall be given a dollar-for-dollar credit of $15 million (representing the total amount of the Break-Up Fee and Expenses potentially payable by the Company to the Investors pursuant to Section 8.2 hereof), such that, for example, if the Company were to receive a Superior Proposal with a transaction value of $250 million, the Investors’ revised proposal would be “equal” to such Superior Proposal if it had a transaction value of $235 million. (d) From the date hereof until the earlier of (x) the Closing Date and (y) the termination of this Agreement in accordance with Section 8.1, the Company shall promptly (and in no event later than two (2) days) deliver to the Investors and the Excluded Parties all written communications delivered to or received by the Company or its Representatives making or materially modifying any Alternative Proposal, including without limitation copies of all expressions of interest, term sheets, letters of intent, offers, proposed agreements or otherwise, and shall regularly update (not less than once every week) the Investors and the Excluded Parties concerning such matters. No Person who has made an Alternative Proposal shall be provided non-public information by the Company unless such Person has executed a customary confidentiality agreement; provided that such confidentiality agreement shall (a) be on no more favorable terms to the third-party than the terms of any confidentiality agreement then in effect between the Company and any of the Investors, and (b) not prohibit the Company from delivering any notice required by this Section 6.2(d). In addition, the Company and its Representatives shall provide the Investors and the Excluded Parties two (2) days prior written notice before initially delivering any non-public information in connection with an Alternative Proposal or the granting of access by the Company or its Representatives to the properties, books or records of the Company to any Person that informs the Company or its Representatives that it is considering making, or has made an Alternative Proposal. The Company agrees that it shall not, and shall cause the Company’s subsidiaries not to, enter into any confidentiality agreement or other agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to the Investors and the Excluded Parties. The Company agrees that neither it nor any of its subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its subsidiaries is a party and that it and its subsidiaries shall enforce the provisions of any such agreement, except to the extent that the Board of Directors determines (after consultation with its financial advisors and legal counsel) that acting in such manner would be inconsistent with its fiduciary duties under applicable Law. (e) As used in this Agreement, “Alternative Transaction” shall mean any actual or proposed transaction or offer for a transaction, other than as contemplated by the Plan, involving any or all of (i) a plan of reorganization or other financial and/or corporate restructuring of any or all of the Debtors (other than an Excluded Restructuring), (ii) the issuance, sale, transfer, exchange or other disposition by the Debtors of any equity or debt interests (other than common stock issued in respect of any employee stock options), or any material assets, of the Debtors, (iii) a merger, consolidation, business combination, liquidation, recapitalization or refinancing, (iv) any similar transaction involving any or all of the Debtors, or (v) any transaction through which the Debtors exit bankruptcy. “Alternative Proposal” shall mean a proposal relating to an Alternative Transaction.or