Exclusivity agreement clause samples

On April11, 2019, on behalf of Smart & Final, representatives of Jefferies and Citi approached representatives of ManagementIX to request an increase in Management IX's proposed purchase price to $6.75 per Share in exchange for entering into another exclusivity agreement. Management IX rejected such request and indicated that it would withdraw its proposal if Smart& Final did not enter into another exclusivity agreement.

On April11, 2019, representatives of Party D and Party J submitted a revised joint proposal with a proposed purchase price of $6.50 per Share, and indicated that they would need to conduct meaningful business and legal due diligence, estimating approximately four weeks before being able to execute a definitive agreement. Party J also indicated that it would need to obtain additional equity and debt financing for its acquisition of the Company's Smart& Final business division. On that day, in accordance with the Committee's directives, representatives of Jefferies and Citi approached representatives of Apollo Management IX to request an increase in Apollo Management IX's proposed purchase price to $6.75 per Share in exchange for entering into another exclusivity agreement. Apollo Management IX rejected such request and indicated that it would withdraw its proposal if the Company did not enter into another exclusivity agreement. Following discussion with the Committee, the Company's management and Ares, representatives of Jefferies and Citi contacted representatives of Party D and Party J to inquire whether they could deliver a proposal at $7.00 per Share. That evening, representatives of Parties D and J indicated that they were striving to submit a revised joint proposal of $7.00 per Share, subject to certain financing conditions (such as securing debt and equity financing commitments), but were not yet ready or able to submit such a proposal at that time.

3. It is understood and agreed that money damages may not be a sufficient remedy for any breach of this Exclusivity Agreement. Without prejudice to the rights and remedies otherwise available to it, either party shall be entitled to seek injunctive or other equitable relief if a party, a party’s controlled subsidiary, or any Representative breaches or threatens to breach any of the provisions of this Exclusivity Agreement. Neither party shall be required to obtain or furnish any bond or similar instrument, or to prove the inadequacy of monetary damages, in connection with or as a condition to obtaining or seeking any such remedy.

7. This Exclusivity Agreement will be governed by the internal laws of the State of Delaware applicable to contracts wholly executed and performed within the State of Delaware, without giving effect to any laws, rules or provisions that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each party hereto hereby irrevocably and unconditionally consents to submit to personal jurisdiction and venue in the federal and state courts located in State of Delaware for any action, suit or proceeding arising out of this Exclusivity Agreement. As provided above, each party hereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Exclusivity Agreement in the federal and state courts located in (or having jurisdiction over) the State of Delaware, and hereby further irrevocably and unconditionally waives its right and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

On May 17, 2016, the Transaction Committee approved the 30-day Exclusivity Agreement with Parent and recommended that the Company Board also approve the Exclusivity Agreement. The Company Board also met on May 17, 2016. At the meeting, the Company Board received an update on the strategic process, reviewed the status of negotiations with Parent and Parent’s latest proposal, and approved the Exclusivity Agreement. K&L Gates gave a presentation to the Transaction Committee and the Company Board regarding fiduciary duties in connection with its consideration of the Exclusivity Agreement. The Company and Parent entered into the Exclusivity Agreement later the same day.

4. It is understood and agreed that money damages may not be a sufficient remedy for any breach of this Exclusivity Agreement. Without prejudice to the rights and remedies otherwise available to it, either party shall be entitled to seek injunctive or other equitable relief if a party or any Representative breaches any of the provisions of this Exclusivity Agreement. Neither party shall be required to obtain or furnish any bond or similar instrument, or to prove the inadequacy of monetary damages, in connection with or as a condition to obtaining or seeking any such remedy. Without limiting the foregoing, the Company understands, and acknowledges and agrees, that any breach of the obligations set forth in this Agreement by any of its subsidiaries or any Representatives of the Company shall be deemed to be a breach of this Agreement by the Company.

On January18, 2018, Duravant submitted a proposal to acquire Key Technology for $24.50 per Share in cash, which included comments on the draft merger agreement, a debt commitment letter from Jefferies Finance LLC to provide debt financing for Duravant’s acquisition of Key Technology and a draft exclusivity agreement. Duravant indicated in its proposal that it had completed its due diligence and requested that Key Technology enter into exclusive negotiations with Duravant in order to finalize the merger agreement and other transaction documentation.

Following receipt of the draft exclusivity agreement, the NCI Board had a telephonic meeting, at which representatives of Paul Hastings, Wells Fargo Securities and Stifel were present, to discuss HIG’s proposal and the terms of the exclusivity agreement. Upon the instruction of the NCI Board, Paul Hastings returned a draft of the exclusivity agreement to HIG, removing the obligation to pay $3,000,000 upon a breach of the agreement. Kirkland responded by modifying the relevant provision of the exclusivity agreement to provide that in the event of NCI’s breach thereof, NCI would reimburse HIG for reasonable and documented expenses actually incurred following the date of such agreement.

On March1, 2017 and March2, 2017, the Board held a meeting with Messrs. Macdonald, Gaenzle and Rush, Ms. Chitwood, Michael Gibertini and Neil Ferguson and representatives of Centerview in attendance. At the meeting, the Board and INC Research management discussed the competitive landscape of the industry and the market environment, including recent consolidation in the CRO space which had improved the capabilities and scale of other CROs. The Board also reviewed the scope of services that consolidated CROs were able to offer their customers in comparison to those offered by INC Research. In addition, the Board discussed INC Research’s business development efforts, including 2016 sales, means of expanding the addressable market and a forecast for 2017. Based in part on these discussions, the Board and INC Research management recognized the strategic importance of increasing the scale of INC Research’s operations and expanding the scope of its service offerings in order to improve its ability to generate business from existing and prospective customers. Messrs.Macdonald, Gaenzle, Rush, Gibertini and Ferguson and Ms. Chitwood, together with Centerview, then discussed the two strategic transactions previously considered at the Board’s February8, 2017 meeting, including a potential transaction with inVentiv that would enable INC Research to expand its clinical services and also offer commercial contract organization capabilities. Messrs. Macdonald, Gaenzle, Rush, Gibertini and Ferguson and Ms. Chitwood, together with Centerview, also discussed with the Board certain potential terms of a transaction with inVentiv. INC Research management and the Board discussed the likely need to conduct substantial due diligence reviews, the time required to negotiate a deal containing favorable terms and the benefit of an exclusivity agreement. After discussion, the Board authorized INC Research management to submit an indication of interest to inVentiv consistent with the terms discussed at the meeting, together with an exclusivity agreement providing for a 60-day exclusive negotiation period.

On March15, 2017, Mr.Macdonald sent a revised proposal letter to Mr.Bell reflecting the terms discussed at the prior day’s board meeting, together with a revised exclusivity agreement. Later that same day, representatives of inVentiv’s financial advisor, Credit Suisse Securities (USA) LLC, which we refer to as Credit Suisse, contacted representatives of Centerview to inform them that inVentiv was not amenable to INC Research’s proposals on valuation or governance. The Credit Suisse representatives further indicated that inVentiv was not willing to make a counterproposal or to continue its work on the basis of INC Research’s response. Representatives of Centerview thereafter relayed this information to INC Research.

Subsequent to the meeting of the TubeMogul Board, Morgan Stanley communicated to Adobe that subject to certain modifications to the exclusivity agreement, and agreement that Adobe is committed to working to sign a transaction on November9, the TubeMogul Board was prepared to enter into an exclusivity agreement and seek to complete the negotiation of a definitive merger agreement. DLA delivered to Weil proposed changes to the form of exclusivity agreement. After further negotiation, later that night the exclusivity agreement was executed.

Between May26, 2016 and May27, 2016, representatives of O’Melveny and Skadden, Arps, Slate, Meagher& Flom LLP (“Skadden”), Cavium’s legal counsel, negotiated the terms of the exclusivity agreement. On May28, 2016, the Company and Cavium entered into an exclusivity agreement dated as of May27, 2016, providing for exclusivity through June23, 2016 in connection with the negotiation of a potential strategic transaction.

64.On May28, 2019, a representative of Evercore called a representative of Extreme and, at the direction of the Board and after consulting with members of Aerohive’s executive management, proposed that Extreme acquire Aerohive for $4.70 per share in cash and indicated that, assuming such terms were acceptable to Extreme, Aerohive would be willing to enter into an exclusivity agreement with Extreme on terms that would be reflected in a revised draft exclusivity agreement. Following such call, the representative of Evercore sent the representative of Extreme a revised draft exclusivity agreement.

This law firm represents Timothy J. Wynne and Brett M. Telford who jointly own approximately 5.4% of the outstanding shares of common stock of Encision. Mr.Wynne and Mr.Telford are interesting in making an offer to purchase all of the issued and outstanding shares of stock of Encision at a fair market price. However, they would like the opportunity to conduct appropriate due diligence and to negotiate with you in confidence. To that end, enclosed with this letter is a proposed Confidentiality and Exclusivity Agreement. Please have the appropriate parties review the proposed Confidentiality and Exclusivity Agreement and return a signed copy if its terms are acceptable.

On June12, representatives of Weil and Kirkland & Ellis LLP, outside legal counsel to MDP (“Kirkland”) negotiated the terms of the Exclusivity Agreement. On the same day, Benefytt and MDP entered into the Exclusivity Agreement providing for, among other things, an exclusivity period ending at 11:59p.m. Eastern Time on July5, 2020.

Later on December3, 2019, Company A submitted an offer to acquire Synthorx for $47.75 in cash per share, representing an equity value of approximately $1.7billion and a premium of approximately 164% to Synthorx’s closing price on December3, 2019. Company A also submitted an executed copy of the exclusivity agreement. Sanofi submitted an offer to acquire Synthorx for $50.50 in cash per share, representing an equity value of approximately $1.8billion and a premium of approximately 179% to Synthorx’s closing price on December3, 2019. Sanofi also provided comments on the form of exclusivity agreement.

Table of Contents Following receipt of the unsolicited Company A offer on December5, 2019, the Board held a special telephonic meeting, with representatives of Synthorx management, Cooley and Centerview attending. Representatives of Centerview provided the Board with an update on the unsolicited offer from Company A. Representatives of Cooley advised the Board of their obligations under the exclusivity agreement with Sanofi. The Board reviewed a draft of the notice of the unsolicited offer that was required to be provided to Sanofi under the exclusivity agreement. The Board directed Synthorx to send the notice to Sanofi, which disclosed that the third party had represented the following: it had completed its preliminary antitrust review and believed there was no risk that a transaction with Synthorx would not receive Hart-Scott-Rodino approval and thus it was willing to agree to a “hell or high water” covenant; that it could quickly review the merger agreement under discussion with the other bidder with the expectation it could be finalized and executed within hours after receipt; and that its due diligence review was completed other than a short phone call to discuss any new THOR-707 clinical data from the ongoing studies and material changes since Synthorx had entered into exclusivity with another party.

Immediately following the Board meeting, Synthorx sent the notice to Sanofi required under the exclusivity agreement. Consistent with the terms of the exclusivity agreement, neither Synthorx nor any of the advisors or other representatives contacted or engaged with Company A.

On March13, 2019, a representative of Perkins Coie sent representatives of Morrison& Foerster a draft exclusivity agreement. From March13, 2019 to March20, 2019, representatives of Morrison& Foerster and Perkins Coie negotiated the exclusivity agreement and exchanged drafts of the exclusivity agreement, focusing on the length of the exclusivity term and the non-solicitation provisions.

On August24, 2018, Mr.Lynford reported to Mr.McDaniel and Mr.Almeida that the Reis Board had authorized him to communicate that Reis was prepared to proceed with Parent at the increased offer price of $23.00 per share. Mr.Lynford also indicated that Reis was willing to grant Parent a limited exclusivity period through August29, 2018, and would instruct his counsel to finalize an exclusivity agreement. Later that day, Parent and Reis entered into an exclusivity agreement that prohibited Reis, subject to certain exceptions, from soliciting alternative acquisition proposals or engaging in discussions with other parties through August29, 2018.

On May15, 2016, Piper Jaffray delivered to Moelis a revised draft of the Exclusivity Agreement. Among other revisions, the revised draft included an exclusivity period of 30 days.

On May16, 2016, Moelis delivered to Piper Jaffray a revised draft of the Exclusivity Agreement. The revised draft reflected Parent’s acceptance of the Company’s proposed 30-day exclusivity period. Dorsey and K&L Gates, along with Parent’s local Delaware counsel, discussed certain aspects of the draft merger agreement which accompanied Parent’s revised May12 proposal. Moelis and Piper Jaffray held a follow-up discussion concerning the Exclusivity Agreement, in which Moelis communicated Parent’s position that it expected any further negotiations with respect to Parent’s revised May12 proposal, including further negotiations regarding the terms of the merger agreement, to be conducted following the entry into the Exclusivity Agreement.

Between May17, 2016 and the execution of the Merger Agreement on June16, 2016, Parent performed certain confirmatory due diligence activities, including certain due diligence that Parent had deferred until the entry into the Exclusivity Agreement. This process involved multiple contacts between personnel and representatives of Parent and the Company between the execution of the Exclusivity Agreement and the execution of the Merger Agreement.