Common use of Negotiations with Others Clause in Contracts

Negotiations with Others. From and after the date hereof unless and until this Agreement shall have terminated in accordance with its terms, He-Ro agrees that neither He-Ro, nor any of its Affiliates or any officer, director, employee, shareholder or other Representative of He-Ro or its Affiliates, will directly or indirectly (i) solicit, engage in discussions or engage in negotiations with any person (other than Nah-Nah or any of its Affiliates) with respect to an Acquisition Proposal; (ii) provide non-public information to any person (other than Nah-Nah or any of its Representatives) in connection with an Acquisition Proposal; or (iii) enter into any transaction with any person (other than Nah-Nah or any of its Affiliates) with respect to an Acquisition Proposal. Notwithstanding the foregoing, He-Ro's Board of Directors may, to the extent required in the exercise of the fiduciary duties of its Board of Directors under applicable law as advised by counsel, engage in or participate in negotiations concerning, and, in connection therewith, provide nonpublic information or data to and have any discussions relating to, an Acquisition Proposal. If He-Ro, any Affiliate or shareholder or Representative thereof receives any Acquisition Proposal, or any offer relating to an Acquisition Proposal, He-Ro will immediately notify Nah-Nah in writing as to the identity of the offeror or the party making any such proposal and the specific terms of such offer or -29- 30 proposal, and shall provide Nah-Nah with seven (7) business days from the date of Nah-Nah's receipt of such notification to match such Acquisition Proposal prior to any acceptance by He-Ro of an Acquisition Proposal. If this Agreement is not terminated as of or prior to the Schedule Delivery Date pursuant to Section 1.4 hereof or otherwise, then, if He-Ro accepts any Acquisition Proposal on or after the Schedule Delivery Date, He-Ro shall immediately upon demand from Nah-Nah, pay to Nah-Nah an amount equal to Nah-Nah's and Han's fees and expenses incurred in connection with this Agreement and the Contemplated Transactions (including without limitation attorneys and accountants fees and expenses) and shall also pay to Nah-Nah upon the closing of such other transaction, 10% of the gross proceeds thereof or $300,000, whichever is less. The parties hereby acknowledge and agree that He-Ro and Rounick shall be jointly and severally liable for any amounts payable under this Section 4.1(i) and Section 4A.1(e) hereof and that any amounts paid under this Section 4.1(i) will be offset by any amounts paid under Section 4A.1(e) hereof.

Negotiations with Others. From Seller Parties acknowledge that Buyer has expended and after will continue to expend significant resources and incur significant expenses in connection with the date hereof unless transactions contemplated by this Agreement, including, without limitation, fees and until expenses of accountants, attorneys and other professional advisors incurred in conducting or assisting Buyer's conducting its due diligence examination of the Seller Parties and the Assets and in preparing this Agreement shall have terminated and the Exhibits hereto, travel expenses of Buyer's personnel and compensation expense and general and administrative expense reflecting the participation of Buyer's personnel in accordance with its termssuch transactions. In consideration of Buyer's willingness to expend such resources and incur such expenses, He-Ro each of the Seller Parties hereby agrees that neither He-Ronone of them and none of the Seller Entities' respective shareholders, nor any of its Affiliates affiliates, directors, officers, employees, advisors, agents or any officerrepresentatives (collectively, director, employee, shareholder or other Representative of He-Ro or its Affiliates, will the "Seller Representatives") shall directly or indirectly (i) encourage, solicit, engage initiate or participate in discussions or engage in negotiations with with, respond favorably to a proposal by, provide any confidential information to, or reach any agreement (definitive or otherwise) with, any person (other than Nah-Nah Buyer) concerning any (a) merger with any Seller Entity, (b) sale, transfer or other disposition of the assets to be acquired, any other assets of any Seller Party or any material part thereof, (c) sale, transfer or other disposition of its Affiliates) with respect to an Acquisition Proposal; (ii) provide non-public information to any person (other than Nah-Nah stock or membership interests of any of its Representatives) in connection with an Acquisition Proposal; Seller Entity or (iiid) enter into any similar transaction with involving any person (Seller Party or the Assets. Without limiting the foregoing each of the Seller Parties hereby represent and warrant that there are no pending discussions, negotiations or other than Nah-Nah or any of its Affiliates) with respect to an Acquisition Proposal. Notwithstanding the foregoing, He-Ro's Board of Directors may, to the extent required activities described in the exercise of immediately preceding sentence on the fiduciary duties of its Board of Directors under applicable law as advised by counseldate hereof, engage in or participate in negotiations concerning, and, in connection therewith, provide nonpublic information or data to and have any discussions relating to, an Acquisition Proposal. If He-Ro, any Affiliate or shareholder or Representative thereof receives any Acquisition Proposal, or any offer relating to an Acquisition Proposal, He-Ro will immediately notify Nah-Nah in writing as to the identity of the offeror or the party making that any such proposal and the specific terms of such offer discussions, negotiations or -29- 30 proposal, and shall provide Nah-Nah with seven (7) business days from the date of Nah-Nah's receipt of such notification to match such Acquisition Proposal prior to any acceptance by He-Ro of an Acquisition Proposal. If this Agreement is not terminated as of other activities that were pending or occurred on or prior to the Schedule Delivery Date pursuant date of the Letter of Intent dated June 1, 2004 were terminated on that date of such Letter of Intent. The Seller Parties will promptly communicate to Buyer the terms of any proposal or inquiry it may receive from any person other than Buyer in respect of any such transaction. In the event of any breach of the terms of this Section 1.4 hereof or otherwise3.2, then, if He-Ro accepts any Acquisition Proposal on or after the Schedule Delivery Date, He-Ro Buyer shall immediately upon demand from Nah-Nah, pay be entitled to Nah-Nah an amount equal to Nah-Nah's and Han's fees and expenses incurred in connection with terminate this Agreement immediately. Seller Parties further acknowledge that in addition to the expenses to be incurred by Buyer, as described in this Section 3.2, any violation of this Section 3.2 would result in Buyer's incurrence of significant lost opportunity costs which are incapable of precise measurement but which would cause significant and long-term harm and damage to the Contemplated Transactions (including without limitation attorneys and accountants fees and expenses) and shall also Buyer. Accordingly, in the event that any Seller Party breaches this Section 3.2, the Seller Parties will pay to Nah-Nah upon the closing Buyer the sum of such other transaction, 10% of the gross proceeds thereof or $300,000, whichever is less2,000,000. The parties hereby acknowledge and agree that He-Ro and Rounick shall Seller Parties will be jointly and severally liable responsible for any amounts payable under this Section 4.1(i) and Section 4A.1(e) hereof such amount. Buyer acknowledges that one or more of the Principals has acquired the Equity Securities of Lease Marketing, Ltd. previously owned by Xxxxx Xxxxxxx and that any amounts paid under such acquisition was not subject to or prohibited by this Section 4.1(i) will be offset by any amounts paid under Section 4A.1(e) hereofSection.

Negotiations with Others. From and after (a) After the date hereof unless and until prior to the Effective Time or earlier termination of this Agreement Agreement, the Company shall have terminated in accordance with its termsnot, He-Ro agrees that neither He-Ro, nor and shall not permit any of its Affiliates the stockholders of the Company, subsidiaries, officers, directors, agents representatives or any officeraffiliates to, director, employee, shareholder or other Representative of He-Ro or its Affiliates, will directly or indirectly indirectly, take any of the following actions with any party other than Parent and its designees: (i) solicit, engage initiate or participate in or encourage any negotiations or discussions or engage in negotiations with any person (other than Nah-Nah or any of its Affiliates) with respect to, any offer or proposal to an Acquisition Proposal; acquire all or substantially all of the Company's business and properties or capital stock whether by merger, purchase of assets or otherwise, (ii) provide non-public disclose any information not customarily disclosed to any person (other than Nah-Nah concerning the Company's business and properties or afford to any of person or entity access to its Representatives) in connection with an Acquisition Proposal; properties, books or records, or (iii) enter into any transaction assist or cooperate with any person proposal for a transaction of the type referred to in clause (other than Nah-Nah i). In the event the Company shall receive any offer or proposal, directly or indirectly, of the type referred to in clause (i) or (iii) above, or any request for disclosure or access pursuant to clause (ii) above, it shall promptly inform Parent as to any such offer or proposal and will cooperate with Parent by furnishing copies of any such offer or proposal and any information relating thereto Parent may reasonably request. (b) The Company (i) acknowledges that a breach of any of its Affiliatescovenants contained in Section 6.5(a) with respect will result in irreparable harm to an Acquisition Proposal. Notwithstanding the foregoingParent which will not be compensable in money damages, He-Ro's Board of Directors may, and (ii) agrees that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the extent required in the exercise of the fiduciary duties of its Board of Directors under applicable law as advised by counsel, engage in or participate in negotiations concerning, and, in connection therewith, provide nonpublic information or data to and have any discussions relating to, an Acquisition Proposal. If He-Ro, any Affiliate or shareholder or Representative thereof receives any Acquisition Proposal, or any offer relating to an Acquisition Proposal, He-Ro will immediately notify Nah-Nah in writing as to the identity of the offeror or the party making any such proposal and the specific terms Parent for a breach of such offer or -29- 30 proposalcovenant. In addition, the Company agrees that if the covenants contained in Section 6.5(a) are breached, the Company will promptly, following notice of such breach, execute an assignment agreement prepared by Parent that assigns all business prospects, proposals, and shall provide Nah-Nah with seven (7) business days from executed contracts developed jointly by the date of Nah-Nah's receipt of such notification to match such Acquisition Proposal prior to any acceptance by He-Ro of an Acquisition Proposal. If this Agreement is not terminated as of Company and Parent or prior to the Schedule Delivery Date pursuant to Section 1.4 hereof or otherwise, then, if He-Ro accepts any Acquisition Proposal on or after the Schedule Delivery Date, He-Ro shall immediately upon demand from Nah-Nah, pay to Nah-Nah an amount equal to Nah-Nah's and Han's fees and expenses incurred executed in connection with this the Reseller Agreement dated December 2, 1998 among the Company, Parent and the Contemplated Transactions (including without limitation attorneys and accountants fees and expenses) and shall also pay to NahC-Nah upon the closing of such other transaction, 10% of the gross proceeds thereof or $300,000, whichever is less. The parties hereby acknowledge and agree that He-Ro and Rounick shall be jointly and severally liable for any amounts payable under this Section 4.1(i) and Section 4A.1(e) hereof and that any amounts paid under this Section 4.1(i) will be offset by any amounts paid under Section 4A.1(e) hereof.COR Electronics Co.

Negotiations with Others. (a) From and after the date hereof unless and until this Agreement shall have been terminated in accordance with its terms, He-Ro agrees Transtech and Seller agree that neither He-Rothey will not, nor any of its Affiliates or any officer, director, employee, shareholder or other Representative of He-Ro or its Affiliates, will directly or indirectly (i) solicitindirectly, engage in discussions and will not permit HVHC or the Company, directly or indirectly, to, encourage or solicit any inquiries or proposals by or engage in any discussions or negotiations with, or enter into any other Contract or understanding with, any person concerning an Acquisition Proposal subject, however, to such actions which, in the good faith judgment of the Board of Directors of Seller or Transtech, based upon the advice of counsel, are required under applicable Law to be taken by the Board of Directors of Seller or Transtech in exercise of its fiduciary duties. Seller shall advise Buyer of any written proposal or offer to enter into an Acquisition Proposal. (b) If, between the date hereof and February 17, 1996 (a Closing hereunder not having occurred), Transtech, Seller, HVHC or the Company should wish to enter into an Acquisition Proposal with any person (other than Nah-Nah Buyer or any of its Affiliates, Seller shall give written notice thereof (the "Sales Notice") with respect to an Buyer. Such Sales Notice shall set forth or be accompanied by a full statement of the terms of the proposed Acquisition ProposalProposal including the: (i) purchase price therefor; (ii) provide non-public information method of payment; (iii) proposed date of closing; and (iv) name, address and telephone number of the proposed transferee. Within thirty days after the giving of the Sales Notice, Buyer shall have the option, by giving written notice thereof to Seller, to match such other Acquisition Proposal on substantially the same terms and conditions set forth therein. (c) If: (i) Buyer has not exercised its rights of first refusal in accordance with Section 4.5(b); (ii) Buyer is willing and able to consummate the Contemplated Transactions and the conditions to such consummation, not within the control of Seller, have been satisfied or waived, and (iii) Seller consummates an Acquisition Proposal with any person (other than Nah-Nah Buyer or any of its Representatives) in connection with an Acquisition Proposal; or (iii) enter into any transaction with any person (other than Nah-Nah or any of its Affiliates) with respect to an Acquisition Proposal. Notwithstanding the foregoing, He-Ro's Board of Directors may, to the extent required in the exercise of the fiduciary duties of its Board of Directors under applicable law as advised by counsel, engage in or participate in negotiations concerning, and, in connection therewith, provide nonpublic information or data to and have any discussions relating to, an Acquisition Proposal. If He-Ro, any Affiliate or shareholder or Representative thereof receives any Acquisition Proposal, or any offer relating to an Acquisition Proposal, He-Ro will immediately notify Nah-Nah in writing as to the identity of the offeror or the party making any such proposal and the specific terms of such offer or -29- 30 proposal, and shall provide Nah-Nah with seven (7) business days from the date of Nah-Nah's receipt of such notification to match such Acquisition Proposal prior to any acceptance by He-Ro of an Acquisition Proposal. If this Agreement is not terminated as of or prior to the Schedule Delivery Date pursuant to Section 1.4 hereof or otherwise, then, if He-Ro accepts any Acquisition Proposal Affiliates on or after before February 17, 1996, Seller and Transtech, jointly and severally, shall pay or cause the Schedule Delivery Date, He-Ro shall immediately upon demand from Nah-Nah, Company to pay to Nah-Nah an amount equal to Nah-Nah's and Han's fees and expenses incurred in connection with this Agreement and the Contemplated Transactions (including without limitation attorneys and accountants fees and expenses) and shall also pay to Nah-Nah upon Buyer at the closing of such other transactiontransaction a fee of $450,000 as compensation for its efforts hereunder. In addition, 10% Transtech, Seller or the Company shall reimburse Xxxxx and Company and Buyer for the expenses of negotiating the gross proceeds thereof or terms of this Agreement including the reasonable fees and expenses due to its investment bankers, investors, lawyers and advisors; provided, that, such reimbursement shall not exceed $300,0001,000,000, whichever is less. The parties hereby acknowledge and agree that He-Ro and Rounick shall be jointly and severally liable for any amounts payable under this Section 4.1(i) and Section 4A.1(e) hereof and that any amounts paid under this Section 4.1(i) will be offset by any amounts paid under Section 4A.1(e) hereofin the aggregate.