Common use of No Solicitation; Termination Right Clause in Contracts

No Solicitation; Termination Right. (a) The Company agrees that, during the term of this Agreement it shall not, and shall not authorize, support or encourage any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate, encourage, facilitate or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving the Company, or acquisition of any capital stock (other than upon exercise of the Options which are outstanding as of the date hereof) or any portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice) of the Company and its Subsidiaries, or any combination of the foregoing (a "Competing Transaction"), or negotiate, or otherwise engage in discussions with any person (other than Parent, the Purchaser or their respective directors, officers, employees, agents and representatives) for the purpose of facilitating any Competing Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that the Company shall use its reasonable best efforts to ensure that none of its Subsidiaries and none of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, undertakes any such actions, and, if the Board learns of any such action, the Company shall take reasonable steps to cause the party undertaking such action to cease such action immediately or shall immediately terminate the Company's and/or any Subsidiary's employment or other relationship with any such director, officer, employee, agent or representative that breaches this Section 6.09; provided further that prior to the purchase of the Common Shares by the Purchaser pursuant to the Offer, the Company may furnish information to, and negotiate or otherwise engage in discussions with, any party who makes a bona fide proposal regarding a Competing Transaction which was not solicited by the Company after the date of this Agreement and which does not violate any Standstill Agreement if and so long as the Board after consultation with its counsel determines in good faith that failing to consider and cooperate with such other party regarding such Competing Transaction would constitute a breach of the fiduciary duties of the Board to the Company's stockholders under applicable law, and, provided further, that in no event does the term "Competing Transaction" include a sale or other disposition of any of the assets specified on the Non-Coal Asset Schedule or that is otherwise specifically permitted hereunder. The Company shall and shall use its reasonable best efforts to cause its Subsidiaries, directors, officers, employees, agents and representatives immediately to cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Competing Transaction. The Company agrees that neither the Board of Directors nor any committee thereof will, during the period referenced in the first sentence of this subsection (a), (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or the Purchase, the Board Recommendation, or (B) approve or recommend, or propose publicly to approve or recommend, any Competing Transaction. The foregoing notwithstanding, in the event that prior to the purchase of Common Shares by the Purchaser pursuant to the Offer the Board of Directors after consultation with its counsel determines in good faith that failure to do so will result in breach of the fiduciary duties of the Board to the Company's stockholders under applicable law, the Board of Directors may (subject to this and the following sentences) withdraw or modify the Board Recommendation, provided that it gives Parent three days' prior written notice of its intention to do so. Any such withdrawal or modification of the Board Recommendation shall not change the approval of the Board of Directors for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Offer, the Merger or the Tender Commitments. The Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Competing Transaction, which becomes known to the Board during the term of this Agreement. The Company shall keep Parent fully apprised of the status and terms of any proposal relating to a Competing Transaction on a current basis. (b) If, prior to the purchase of Common Shares by the Purchaser pursuant to the Offer, the Board after consultation with its financial and legal advisors determines in good faith that any written proposal from a third party for a Competing Transaction received after the date hereof that was not solicited by the Company or any of its Subsidiaries or affiliates in violation of this Agreement (and that does not violate or breach any Standstill Agreement executed by such party with respect to the Company prior to the date of this Agreement) is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions of such transaction proposed in writing by the Company in response to such Competing Transaction) and is in the best interest of the stockholders of the Company, the Company may terminate this Agreement at any time prior to the Offer Purchase Closing and enter into a letter of intent, agreement-in-principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") with respect to such Competing Transaction provided that, the Company provides written notice of such termination to Parent at least three full business days prior to the effectiveness of such termination and, the Company delivers to Parent within five business days following such termination (A) by check or wire transfer of same day funds, (i) an amount equal to Parent's Costs (as defined in Section 8.02) as the same may have been estimated by Parent in good faith prior to the date of such delivery (subject to an adjustment payment between the parties upon Parent's definitive determination of such costs), but in any event not to exceed $10,000,000, and (ii) the amount of the Termination Fee as provided in Section 8.02 and (B) a written acknowledgment from the Company and the other party to the Competing Transaction that the Company and such other party have irrevocably waived any right to contest such payments.

No Solicitation; Termination Right. (a) The Company agrees that, during the term of this Agreement it shall not, and shall not authorize, support or encourage any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to (i) solicit, initiate, encourage, facilitate or facilitate, furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving the Company, or acquisition of any capital stock (other than upon exercise of the Options and Warrants which are outstanding as of the date hereof) or any portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice) of the Company and its SubsidiariesCompany, or any combination of the foregoing (a "Competing Transaction"), or ; (ii) negotiate, or otherwise engage in discussions with any person (other than Parent, the Purchaser Group or their respective directors, officers, employees, agents and representatives) for the purpose of facilitating any Competing Transaction Transaction; or (iii) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that the . The Company shall use its reasonable best efforts to ensure that none of its Subsidiaries and none of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, undertakes any such actions, and, if the Board learns of any such action, the Company shall take reasonable steps to cause the party undertaking such action to cease such action immediately or shall immediately terminate the Company's and/or any Subsidiary's employment or other relationship with any such director, officer, employee, agent or representative that breaches this Section 6.09; provided further that prior to the purchase of the Common Shares by the Purchaser pursuant to the Offer, the Company may furnish information to, and negotiate or otherwise engage in discussions with, any party who makes a bona fide proposal regarding a Competing Transaction which was not solicited by the Company after the date of this Agreement and which does not violate any Standstill Agreement if and so long as the Board after consultation with its counsel determines in good faith that failing to consider and cooperate with such other party regarding such Competing Transaction would constitute a breach of the fiduciary duties of the Board to the Company's stockholders under applicable law, and, provided further, that in no event does the term "Competing Transaction" include a sale or other disposition of any of the assets specified on the Non-Coal Asset Schedule or that is otherwise specifically permitted hereunder. The Company shall and shall use its reasonable best efforts to cause its Subsidiaries, directors, officers, employees, agents and representatives immediately to cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Competing Transaction and use its best efforts to ensure that no directors, officers, employees, agents or representatives, directly or indirectly, undertakes any such activities during the term of this Agreement, and, if the Board learns of any such action, the Company shall take reasonable steps to cause the party or parties undertaking such action to cease such action immediately, including termination of parties that breach this Section 6.08. If, however, prior to Offer Purchase Closing, a party makes a bona fide written proposal regarding a Competing Transaction, which (A) was not solicited by the Company after the date of this Agreement, (B) does not violate any Exclusivity Agreement, and (C) is accompanied by evidence of such party's ability to finance the Competing Transaction, to the extent that the Board shall have concluded in good faith, on the basis of advice from its legal counsel (that is recorded in writing and incorporated in the Company's minutes) and the Company's financial advisors, that (y) such Competing Transaction is more favorable to the shareholders of the Company than the transactions contemplated by the Offer and this Agreement (taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal) and (z) failing to consider and cooperate with such other party regarding the proposed Competing Transaction would constitute a breach of the fiduciary duties of the Board to the Company's shareholders under applicable law, the Company may furnish information to, and negotiate or otherwise engage in discussions with that party. The Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations or correspondence relating to a Competing Transaction, which becomes known to the Board during the term of this Agreement and keep Parent fully apprised of the status and terms of any proposal relating to a Competing Transaction on a current basis. The Company further agrees that neither the Board of Directors nor any committee thereof will, during the period referenced in the first sentence of this subsection (a), will (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or the PurchasePurchaser Group, the Board Recommendation, or (B) approve or recommend, or propose publicly to approve or recommend, any Competing Transaction. The foregoing notwithstandingNotwithstanding the foregoing, in the event that if prior to the purchase of Common Shares by the Purchaser pursuant to the Offer Purchase Closing, the Board of Directors after consultation with its counsel determines in good faith faith, on the basis of advice from its legal counsel (that is recorded in writing and incorporated in the Company's minutes) and the Company's financial advisors that its failure to do so will result in cooperate with such other party regarding the proposed Competing Transaction would constitute a breach of the fiduciary duties of the Board to the Company's stockholders shareholders under applicable law, the Board of Directors may (subject to this and the following sentences) withdraw or modify the Board Recommendation; provided, provided however, that the Company shall immediately inform Purchaser orally and in writing of the terms and conditions of such Competing Transaction and the identity of the person making it gives Parent three days' prior written notice of its intention and if any Competing Transaction is in writing, the Company shall immediately deliver a copy thereof to do soPurchaser. Any such withdrawal or modification of the Board Recommendation shall not change the approval of the Board of Directors for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Offer, the Merger or the Tender Commitments. The Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Competing Transaction, which becomes known to the Board during the term of this Agreement. The Company shall keep Parent fully apprised of the status and terms of any proposal relating to a Competing Transaction on a current basisMerger. (b) If, prior to the purchase of any Common Shares by the Purchaser pursuant to the Offer, the Board after consultation with its financial and legal advisors determines in good faith that any a party makes a bona fide written proposal from a third party for a Competing Transaction received after the date hereof that Transaction, which (i) was not solicited by the Company or any of its Subsidiaries or affiliates in violation of this Agreement Agreement, (and that ii) does not violate or breach any Standstill Agreement executed Exclusivity Agreement, and (iii) is accompanied by evidence of such party with respect party's ability to finance the Competing Transaction, to the Company prior to extent that the date Board shall have concluded in good faith, on the basis of this Agreementadvice from its legal counsel and the Company's financial advisors, that (A) such Competing Transaction is more favorable to the stockholders shareholders of the Company from a financial point of view than the transactions contemplated by the Offer and this Agreement (including any adjustment taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal) and (B) failing to consider and cooperate with such other party regarding the proposed Competing Transaction would constitute a breach of the fiduciary duties of the Board to the terms and conditions of such transaction proposed in writing by the Company in response to such Competing Transaction) and is in the best interest of the stockholders of the Company's shareholders under applicable law, the Company may terminate this Agreement at any time prior to the Offer Purchase Closing and enter into a letter of intent, agreement-in-principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") with respect to such Competing Transaction Transaction, provided that, that the Company provides written notice immediately informs Parent orally and in writing of such contemplated termination to Parent at least three full business days prior to the effectiveness of such termination and, the Company and delivers to Parent within five (5) full business days following such termination (A) by check or wire transfer of same day funds, (iy) an amount equal to Parent's Costs (as defined in Section 8.02) as the same may have been estimated by Parent in good faith prior to the date of such delivery (subject to an adjustment payment between the parties upon Parent's definitive determination of such costs), but in any event not to exceed $10,000,000, and (iiz) the amount of the Termination Fee as provided in Section 8.02 and (B) a written acknowledgment from the Company and the other party to the Competing Transaction that the Company and such other party have irrevocably waived any right to contest such payments.

No Solicitation; Termination Right. (a) The Company agrees that, during the term of this Agreement it shall not, . and shall not authorize, authorize support or encourage any of its Subsidiaries or any of its or its Subsidiaries' Subsidiaries directors, officers, employees, agents or representatives, . directly or indirectly, to solicit, initiate, encourage, facilitate or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving the Company, or acquisition of any capital stock (other than upon exercise of the Options which are outstanding as of the date dare hereof) or any portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice) of the Company and its Subsidiaries, or any combination of the foregoing (a "Competing Transaction"), or negotiate, or otherwise engage in discussions with any person (other than Parent, the Purchaser or their respective directors, officers, employees, agents and representatives) for the purpose purpose! of facilitating any Competing Transaction or enter into any agreement., arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that the Company shall use its reasonable best efforts to ensure that -------- none of its Subsidiaries and none of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, undertakes any such actions, and, if the Board learns of any such action, the Company shall take reasonable steps to cause the party undertaking such action to cease such action immediately or shall immediately terminate the Company's and/or any Subsidiary's employment or other relationship with any such director, officer, employee, agent or representative that breaches this Section 6.09; provided further that prior to the purchase of the Common Shares by the -------- ------- Purchaser pursuant to the Offer, ; the Company may furnish information to, and negotiate or otherwise engage in discussions with, any party who makes a bona fide proposal regarding a Competing Transaction which was not solicited by the Company after the date of this Agreement and which does not violate any Standstill Agreement if and so long as the Board after consultation with its counsel determines in good faith that failing to consider and cooperate with such other party regarding such Competing Transaction would constitute a breach of the fiduciary duties of the Board to the Company's stockholders under applicable law, and, provided further, further that in no event does the term "Competing -------- ------- Transaction" include a sale or other disposition of any of the assets specified on the Non-Coal Asset Schedule or that is otherwise specifically permitted hereunder. The ne Company shall and shall use its reasonable best efforts to cause its Subsidiaries, directors, officers, employees, agents and representatives immediately to cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Competing Transaction. The Company agrees that neither the Board of Directors nor any committee thereof will, during the period referenced in the first sentence of this subsection (a), (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or the Purchase, the Board Recommendation, or (B) approve or recommend, or propose publicly to approve or recommend, any Competing Transaction. The foregoing notwithstanding, in the event that prior to the purchase of Common Shares by the Purchaser pursuant to the Offer the Board of Directors after consultation with its counsel determines in good faith that failure to do so will result in breach of the fiduciary duties of the Board to the Company's stockholders under applicable law, the Board of Directors may (subject to this and the following sentences) withdraw or modify the Board Recommendation, provided that it gives Parent three days' prior written notice of its intention to do so. Any such withdrawal or modification of the Board Recommendation shall not change the approval of the Board of Directors for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Offer, the Merger or the Tender Commitments. The Company shall immediately advise Parent in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Competing Transaction, which becomes known to the Board during the term tent of this Agreement. The Company shall keep Parent fully apprised of the status and terms of any proposal relating to a Competing Transaction on a current basis. (b) If, prior to the purchase of Common Shares by the Purchaser pursuant to the Offer, the Board after consultation with its financial and legal advisors determines in good faith that any written proposal from a third party for a Competing Transaction received after the date hereof that was not solicited by the Company or any of its Subsidiaries or affiliates in violation of this Agreement (and that does not violate or breach any Standstill Agreement executed by such party with respect to the Company prior to the date of this Agreement) is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions of such transaction proposed in writing by the Company in response to such Competing Transaction) and is in the best interest of the stockholders of the Company, the Company may terminate this Agreement at any time prior to the Offer Purchase Closing and enter into a letter of intent, agreement-in-principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") with respect to such Competing Transaction provided that, the Company provides written notice of such termination to Parent at least three full business days prior to the effectiveness of such termination and, the Company delivers to Parent within five business days following such termination (A) by check or wire transfer of same day funds, (i) an amount equal to Parent's Parents Costs (as defined in Section 8.02) as the same may have been estimated by Parent in good faith prior to the date of such delivery (subject to an adjustment payment between the parties upon Parent's definitive determination of such costs), but in any event not to exceed $10,000,000, and (ii) the amount of the Termination Fee as provided in Section 8.02 and (B13) a written acknowledgment from the Company and the other party to the Competing Transaction that the Company and such other party have irrevocably waived any right to contest such payments.