Common use of Negotiation with Others Clause in Contracts

Negotiation with Others. (a) During the Executory Period, neither Party (which solely for purposes of this Section 6.4 shall include The T Partnership or any of its partners) shall, and neither Party shall permit any agent or other representative of such Party to, directly or indirectly: (i) solicit, initiate or engage in discussions or engage in negotiations with any person (whether such negotiations are initiated by the Party or otherwise) or take any other action to facilitate the efforts of any person, relating to the possible acquisition of a Party (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (any such acquisition being referred to as an "Acquisition Transaction"); (ii) provide information to any person, other than a Party, relating to a possible Acquisition Transaction; (iii) enter into an agreement with any person, other than a Party, relating to a possible Acquisition Transaction; (iv) consummate an Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction; or (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, unless all Parties are a party to such Acquisition Transaction; provided, however, that -------- ------- nothing contained herein shall prohibit the Board of Directors of the Company or Parent, respectively, from furnishing information to, or entering into discussions or negotiations with (i) any unaffiliated third party that makes or is proposing to make an unsolicited written, bona fide offer with respect to an Acquisition Transaction, if the Board of Directors of the Company or Parent, respectively, based upon the written advice of outside legal counsel, respectively, determines in good faith that such action is necessary for the Board of Directors of the Company or Parent, respectively, to comply with its fiduciary duties under applicable law (such unsolicited written, bona fide offer being referred to herein as a "Superior Proposal") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to the other Party, and (ii) such parties who have made proposals, formal or informal, which may become a Superior Proposal as to which either Company or Parent has advised the other, in writing, prior to the date of this Agreement. If either the Company or Parent receives any unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such Party shall notify the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of such offer or proposal, as the case may be.

Negotiation with Others. During the Execution Period, the Company shall not authorize, cause or permit any of the Company’s Stockholders, employees, directors, officers, advisors, consultants or agents to, (a) During the Executory Period, neither Party (which solely for purposes of this Section 6.4 shall include The T Partnership or any of its partners) shall, and neither Party shall permit any agent or other representative of such Party to, directly or indirectly: (i) , solicit, initiate initiate, encourage, entertain or engage (regardless of who initiates such action) in discussions or engage in negotiations with with, provide any person (whether such negotiations are initiated by the Party or otherwise) information to, or take any other action to facilitate that facilitates the efforts of of, any person, third party relating to any agreement (whether binding or in principle) or other arrangement involving (i) the possible acquisition of a Party the Company (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (any such acquisition being referred to as an "Acquisition Transaction"); (ii) provide information to any person, other than an investment in (including by way of a Party, relating to a possible Acquisition Transactionsale or transfer of the Company Capital Stock) or financing of the Company; or (iii) enter into an agreement with a sale, assignment, transfer, license, disposal of or encumbrance upon any personmaterial asset, right or property of the Company (including, without limitation, any of the Company’s proprietary technology or intellectual property) other than non-exclusive licenses granted by the Company in its ordinary course of business; or that would otherwise be inconsistent with the terms of this Agreement or that would prohibit the performance by the Company of its obligations under this Agreement or that could reasonably be expected to diminish the likelihood of or render impracticable the consummation of the transactions contemplated by this Agreement (each, a Party, relating to a possible Acquisition “Prohibited Transaction; (iv) consummate an Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction”); or (vb) make authorize or authorize consummate a Prohibited Transaction. Upon execution and delivery of this Agreement, the Company shall: (x) terminate any statementand all discussions, recommendation negotiations or solicitation agreements, if any, they may be having regarding a Prohibited Transaction; and (y) immediately notify Parent in support of writing if it thereafter receives any possible Acquisition inquiries or offers, directly or indirectly, from any Person regarding a Prohibited Transaction, unless all Parties are a party which notice shall be sufficiently detailed as to such Acquisition Transaction; provided, however, that -------- ------- nothing contained herein shall prohibit identify the Board of Directors nature and structure of the Prohibited Transaction as proposed and to confirm that the inquiry regarding a Prohibited Transaction was definitively rejected, and the Company shall refuse to discuss and immediately reject such inquiry or Parentoffer. Neither the Company nor any of its Stockholders, respectivelyofficers, from furnishing information todirectors, employees, representatives or agents, including any investment banker, attorney or accountant engaged by any of them, shall amend, modify, waive or terminate, or entering into discussions otherwise release any Person from, any standstill, confidentiality or negotiations with (i) any unaffiliated third party that makes similar agreement or is proposing to make an unsolicited written, bona fide offer with respect arrangement currently in effect in relation to an Acquisition Prohibited Transaction. The Company shall cause its Stockholders, if the Board of Directors of the Company or Parentofficers, respectivelydirectors, based upon the written advice of outside legal counselagents, respectively, determines in good faith that such action is necessary for the Board of Directors of the Company or Parent, respectively, advisors and representatives to comply with its fiduciary duties under applicable law (such unsolicited written, bona fide offer being referred to herein as a "Superior Proposal") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to the other Party, and (ii) such parties who have made proposals, formal or informal, which may become a Superior Proposal as to which either Company or Parent has advised the other, in writing, prior to the date provisions of this Agreement. If either the Company or Parent receives any unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such Party shall notify the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of such offer or proposal, as the case may beSection 5.5.

Negotiation with Others. During the Execution Period, neither the Shareholder nor Company shall and they shall not authorize, cause or permit any of any Shareholder’s or Company’s employees, directors, officers, advisors, consultants or agents to, (a) During the Executory Period, neither Party (which solely for purposes of this Section 6.4 shall include The T Partnership or any of its partners) shall, and neither Party shall permit any agent or other representative of such Party to, directly or indirectly: (i) , solicit, initiate initiate, encourage, entertain or engage (regardless of who initiates such action) in discussions or engage in negotiations with with, provide any person (whether such negotiations are initiated by the Party or otherwise) information to, or take any other action to facilitate that facilitates the efforts of of, any person, third party relating to any agreement (whether binding or in principle) or other arrangement involving (i) the possible acquisition of a Party Company (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (any such acquisition being referred to as an "Acquisition Transaction"); (ii) provide information to an investment in (including by way of a sale or transfer by the Shareholder of all or any person, other than a Party, relating to a possible Acquisition Transactionportion of the shares of Company Common Stock) or financing of Company; or (iii) enter into an agreement with a sale, assignment, transfer, license, disposal of or encumbrance upon any personmaterial asset, right or property of Company (including, without limitation, any of Company Intellectual Property) other than non-exclusive licenses granted by Company in its ordinary course of business; or that would otherwise be inconsistent with the terms of this Agreement or that would prohibit the performance by the Shareholder or Company of their respective obligations under this Agreement or that could reasonably be expected to diminish the likelihood of or render impracticable the consummation of the transactions contemplated by this Agreement (each, a Party, relating to a possible Acquisition “Prohibited Transaction; (iv) consummate an Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction”); or (vb) make authorize or authorize consummate a Prohibited Transaction. Upon execution and delivery of this Agreement, the Shareholder and Company shall: (x) terminate any statementand all discussions, recommendation if any, they may be having regarding a Prohibited Transaction; and (y) immediately notify Buyer in writing if they thereafter receive any inquiries or solicitation in support of offers from any possible Acquisition Person regarding a Prohibited Transaction, unless all Parties are a party which notice shall be sufficiently detailed as to such Acquisition Transaction; provided, however, that -------- ------- nothing contained herein shall prohibit identify the Board of Directors nature and structure of the Prohibited Transaction as proposed, and the Shareholder and Company shall refuse to discuss and immediately reject such inquiry or Parentoffer. The Shareholder and Company shall cause their respective officers, respectivelydirectors, from furnishing information toagents, or entering into discussions or negotiations with (i) any unaffiliated third party that makes or is proposing to make an unsolicited written, bona fide offer with respect to an Acquisition Transaction, if the Board of Directors of the Company or Parent, respectively, based upon the written advice of outside legal counsel, respectively, determines in good faith that such action is necessary for the Board of Directors of the Company or Parent, respectively, advisors and representatives to comply with its fiduciary duties under applicable law (such unsolicited written, bona fide offer being referred to herein as a "Superior Proposal") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to the other Party, and (ii) such parties who have made proposals, formal or informal, which may become a Superior Proposal as to which either Company or Parent has advised the other, in writing, prior to the date provisions of this Agreement. If either the Company or Parent receives any unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such Party shall notify the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of such offer or proposal, as the case may beSection 6.11.

Negotiation with Others. (a) During the Executory Period, neither Party CASS shall not, except with respect to the Asset Sale, (which solely for purposes of this Section 6.4 and CASS shall include The T Partnership not permit its employees, directors, officers, advisors, consultants or any of its partners) shallagents to), and neither Party Stockholder shall permit any agent or other representative of such Party tonot, directly or indirectly: (i) solicit, initiate or engage in any discussions or engage in negotiations with any person (with, whether such negotiations are or not initiated by the Party CASS or otherwise) Stockholder, or provide any information to, or take any other action with the intent to facilitate the efforts of of, any person, third party relating to any possible agreement (whether binding or in principle) or other arrangement involving (1) the possible acquisition of a Party CASS (whether by way of merger, purchase of capital stock, purchase of all or any substantial part of the assets of CASS or otherwise); (2) any financing (other than in the ordinary course under CASS's already existing credit facilities) of, or investment in, including the purchase of any capital stock in, CASS; (3) the sale, license, disposition or encumbrance of any Intellectual Property Rights of CASS; or (4) any action or agreement that would otherwise be inconsistent with the terms of this Agreement, the Certificate of Merger and Articles of Merger or the Related Agreements or that would prohibit or impair in any material portion respect the performance of its capital stock CASS's or assets Stockholder's obligations under this Agreement, the Certificate of Merger and Articles of Merger or the Related Agreements or that could reasonably be expected to diminish the likelihood of or render impracticable or undesirable the consummation of the Merger (any such acquisition being referred to as an each, a "Acquisition Prohibited Transaction"); or (ii) provide information to any personauthorize or consummate a Prohibited Transaction. In addition, other than a Partyupon execution and delivery of this Agreement, relating to a possible Acquisition Transaction; (iii) enter into an agreement with any person, other than a Party, relating to a possible Acquisition Transaction; (iv) consummate an Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction; or (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, unless all Parties are a party to such Acquisition Transaction; provided, however, that -------- ------- nothing contained herein shall prohibit the Board of Directors of the Company or Parent, respectively, from furnishing information to, or entering into discussions or negotiations with CASS and Stockholder shall: (i) terminate any unaffiliated third party that makes and all discussions, if any, it or is proposing to make an unsolicited written, bona fide offer with respect to an Acquisition he may be having regarding a Prohibited Transaction; and (ii) immediately notify Alloy in writing if it or he thereafter receives any inquiries or offers from any person or entity regarding a Prohibited Transaction, if which notice shall contain the Board identity of Directors of the Company or Parent, respectively, based upon the written advice of outside legal counsel, respectively, determines in good faith that such action is necessary for the Board of Directors of the Company or Parent, respectively, to comply with its fiduciary duties under applicable law (such unsolicited written, bona fide offer being referred to herein as a "Superior Proposal") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to nature of the other PartyProhibited Transaction proposed and the material terms of the proposal, and (ii) CASS and Stockholder shall refuse to discuss, and immediately reject such parties who have made proposals, formal inquiry or informal, which may become a Superior Proposal as to which either Company or Parent has advised the other, in writing, prior to the date of this Agreement. If either the Company or Parent receives any unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such Party shall notify the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of such offer or proposal, as the case may beoffer.

Negotiation with Others. (a) During the Executory PeriodThe Company shall not, neither Party (which solely for purposes and it shall not authorize or permit any of this Section 6.4 shall include The T Partnership its subsidiaries, officers, directors or employees or any of its partners) shall, and neither Party shall permit any agent or other representative of such Party toits subsidiaries' Representatives, directly or indirectly: , to (i) solicit, initiate or knowingly encourage or induce the making of any Acquisition Proposal (as defined in Section 7.1), (ii) furnish non-public information regarding the Company or any of its subsidiaries in connection with an Acquisition Proposal or potential Acquisition Proposal, (iii) negotiate or engage in discussions or engage in negotiations with any person (whether such negotiations are initiated by the Party or otherwise) or take any other action to facilitate the efforts of any person, relating to the possible acquisition of a Party (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (any such acquisition being referred to as an "Acquisition Transaction"); (ii) provide information third party with respect to any personAcquisition Proposal, other than a Party, relating to a possible Acquisition Transaction; (iii) enter into an agreement with any person, other than a Party, relating to a possible Acquisition Transaction; (iv) consummate an approve, endorse or recommend any Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction; Proposal or (v) make enter into any letter of intent, contract or authorize other instrument related directly or indirectly to any statementAcquisition Proposal (other than a nondisclosure agreement entered into in accordance with Section 4.4(c) or contracts with advisors or consultants). Notwithstanding the foregoing, recommendation nothing in this Section 4.4 shall be construed to prohibit the Company or solicitation its Board of Directors from taking any actions or permitting any actions described above (other than any action described in support of clause (i) above) with respect to any possible Acquisition Transaction, unless all Parties are a party Proposal to such Acquisition Transaction; provided, however, the extent that -------- ------- nothing contained herein shall prohibit the Board of Directors of the Company or Parent, respectively, from furnishing information to, or entering into discussions or negotiations with (i) any unaffiliated third party that makes or is proposing to make an unsolicited written, bona fide offer with respect to an Acquisition Transaction, if the Board of Directors of the Company or Parent, respectivelyshall conclude in good faith, based upon the written advice of its outside legal counsel, respectively, determines in good faith that such action is necessary required in order for the Board of Directors of the Company or Parent, respectively, to comply act in a manner that is consistent with its fiduciary duties obligations under applicable law (PROVIDED that, in the event any letter of intent, contract or other instrument of the type described in clause (v) of the preceding sentence is entered into, the consummation of any transaction contemplated by the Acquisition Proposal to which such unsolicited written, bona fide offer being referred instrument relates must be expressly conditioned upon the prior and valid termination of this Agreement and the payment of any fee due under Article 7 hereof). (b) The Company shall immediately advise PacifiCare orally and in writing of the receipt of any Acquisition Proposal or any inquiry relating to herein as a "Superior Proposal") and an Acquisition Proposal prior to furnishing the Effective Time, including a full description of the terms of such Acquisition Proposal. (c) Notwithstanding anything to the contrary contained herein, the Company shall not furnish any information to, or entering into to any third party pursuant to clause (ii) of the first sentence of Section 4.4(a) unless such third party has executed and delivered to the Company a nondisclosure agreement that is not substantially less restrictive than the nondisclosure agreement then in effect between the Company and PacifiCare. (d) The Company shall immediately cease and cause to be terminated any discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to the other Party, and (ii) such with any parties who have made proposals, formal or informal, which may become a Superior Proposal existing as to which either Company or Parent has advised the other, in writing, prior to of the date of this Agreement. If either Agreement and that relate to any Acquisition Proposal and shall request the Company return or Parent receives any unsolicited offer or proposal destruction of all information previously disclosed to enter negotiations relating to an Acquisition Transaction, such Party shall notify parties in accordance with the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of any confidentiality agreements with such offer parties, and shall use commercially reasonable efforts to ensure that such information is returned or proposal, as the case may be.destroyed. 4.5

Negotiation with Others. (a) During the Executory Period, neither Party (which solely for purposes of this Section 6.4 shall include The T Partnership or any of its partners) shall, and neither Party shall permit any agent or other representative of such Party to, directly or indirectly: (i) solicit, initiate or engage in discussions or engage in negotiations with any person (whether such negotiations are initiated by the Party or otherwise) or take any other action to facilitate the efforts of any person, relating to the possible acquisition of a Party (whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (any such acquisition being referred to as an "Acquisition Transaction"); (ii) provide information to any person, other than a Party, relating to a possible Acquisition Transaction; (iii) enter into an agreement with any person, other than a Party, relating to a possible Acquisition Transaction; (iv) consummate an Acquisition Transaction with any person other than a Party or enter into an agreement with any person, other than a Party, providing for a possible Acquisition Transaction; or (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, unless all Parties are a party to such Acquisition Transaction; provided, however, that -------- ------- nothing contained herein shall prohibit the Board of Directors of the Company or Parent, respectively, from furnishing information to, or entering into discussions or negotiations with (i) any unaffiliated third party that makes or is proposing to make an unsolicited written, bona fide offer with respect to an Acquisition Transaction, if the Board of Directors of the Company or Parent, respectively, based upon the written advice of outside legal counsel, respectively, determines in good faith that such action is necessary for the Board of Directors of the Company or Parent, respectively, to comply with its fiduciary duties under applicable law (such unsolicited written, bona fide offer being referred to herein as a "Superior Proposal") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company or Parent provides, respectively, written notice to the other Party, and (ii) such parties who have made proposals, formal or informal, which may become a Superior Proposal as to which either Company or Parent has advised the other, in writing, prior to the date of this Agreement. If either the Company or Parent receives any unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such Party shall notify the other Party thereof, including information as to the identity of the party making such offer or proposal and the specific terms of such offer or proposal, as the case may be.