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 Company and after Sxxxxxx acknowledge that, upon execution of this Letter of Intent, Bxxxx will proceed with the investigation described above, will retain counsel, accountants and other advisers, and will commence preparation of documents to implement the terms hereof. Accordingly, Company and Sellers agree that prior to the 90th day following the date hereof unless and until on which Bxxxx executes this Agreement shall have terminated in accordance with its termsLetter of Intent, He-Ro agrees that neither He-Rothe Company, nor any of its Affiliates Sellers nor Company's employees or any officer, director, employee, shareholder or other Representative of He-Ro or its Affiliates, agents will directly or indirectly (i) solicitcontact, engage in discussions solicit from, or engage in negotiations negotiate or communicate with any person (anyone other than Nah-Nah Buyer regarding the sale or potential sale of Company's stock, its assets, or any ownership interest in Company, and any such contacts, solicitations, negotiations or communications which were initiated prior to the execution of its Affiliatesthis Letter of Intent shall be suspended and shall not resume. Company will promptly reveal to Buyer the nature and terms of any unsolicited offer, proposal or communication Seller receives from any third party after the execution of this Letter of Intent. Effect of this Letter of Intent; Miscellaneous. When signed by all parties, paragraphs 1, 3, 5, 6, 7 and 8 of this Letter of Intent will be a binding and enforceable agreement between the parties. Buyer and Company agree to proceed promptly in the preparation and negotiation of the definitive Stock Purchase Agreement. The Stock Purchase Agreement will be prepared by Company's counsel consistent with the terms and conditions outlined in this Letter of Intent. Regardless of whether a definitive Asset Purchase Agreement is entered into, Buyer and Seller will bear their own expenses for this transaction. The parties understand and acknowledge that Company will pay to Acquisitions Northwest, Inc. ("ANI") with respect to an Acquisition Proposal; (ii) provide non-public information to any person (other than Nah-Nah or any a broker's fee of its Representatives) $115,000 in connection with an Acquisition Proposal; or (iii) enter into any transaction with any person (other than Nah-Nah or any AXX's representation of its Affiliates) with respect to an Acquisition Proposal. Notwithstanding the foregoing, He-Ro's Board of Directors may, to the extent required Company in the exercise transaction which is the subject of the fiduciary duties this Letter 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 lessIntent. The parties hereby further understand and acknowledge and agree that He-Ro and Rounick AXX's fee shall be jointly paid out of the shares of Willamette Valley Vineyards, Inc. common stock to be received by Sellers in this transaction. This Letter of Intent shall be effective upon signature by all parties in the spaces below. Very truly yours, /s/ Kxxxx X. Xxxxxxxx Kxxxx X. Xxxxxxxx Vice President/General Manager Willamette Valley Vineyards, Inc. SIGNATURE PAGE ACCEPTED AND AGREED TO: Tualatin Vineyards, Inc. By: /s/ Wxxxxxx Xxxxxxx 1/16/97 Wxxxxxx Xxxxxxx Date President and severally liable for any amounts payable under this Section 4.1(i) Director /s/ Wxxxxxx Xxxxxx 1/17/97 Wxxxxxx Xxxxxx, Director Date /s/ Lxxxx Xxxxxxx 1/16/97 Lxxxx Xxxxxxx, Director Date Willamette Valley Vineyards, Inc. By: /s/ Jxxxx X. Xxxxxx 1/15/97 Jxxxx X. Xxxxxx Date President 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.Chairman of the Board of Directors