Common use of Negotiations with Others Clause in Contracts

Negotiations with Others. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, directly or indirectly, take any of the following actions with any party other than Parent and its designees: (i) solicit, initiate or participate in or encourage any negotiations or discussions with respect to, any offer or proposal to acquire all or substantially all of the Company's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise, (ii) disclose any information not customarily disclosed to any person concerning the Company's business and properties or afford to any person or entity access to its properties, books or records, (iii) assist or cooperate with any proposal for a transaction of the type referred to in clause (i) or (iv) disclose the terms or conditions of this Agreement or the Letter of Intent dated May 25, 1999 between the Company and Parent. 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) Either party may refuse to close if in good faith it determines that the transaction cannot be done as a pooling of interest transaction (a "Permitted Termination"). If the transaction shall fail to close due to a party ---------------------- refusing to close after all of the conditions set forth in Article VIII have been satisfied or waived by the party entitled to so waive and one of the parties (for purposes of this paragraph Parent and Subsidiary shall constitute one party) advises the other that it is ready, willing and able to effect the Merger and the other party fails to effect the Merger for any reason other than a Permitted Termination, then (x) if Parent refused to execute this Agreement or close, Parent agrees to promptly pay to the Company $3,000,000 and in addition make a loan promptly to the Company in a principal amount which, together with the principal amount of all other loans by Parent to the Company then outstanding, equals $3,000,000 and (y) if the Company refused to execute this Agreement or close, the Company shall grant most favored nation status as to both price and priority for sales of the Company's products to C-COR for a period of one year from the date hereof, the Company shall promptly pay to Parent $3,000,000 and the Company shall pay an additional $3,000,000 to Parent in the event the Company directly or indirectly merges or sells substantially all of its stock (including by supporting a tender offer for its shares) or assets or agrees to do any of the foregoing prior to January 2001. Debt issued to Parent pursuant to the foregoing sentence shall accrue interest at the prime rate, shall be convertible into Company Common Stock immediately prior to a change in control of the Company and shall mature on the earlier of a change in control of the Company or January 2001. (c) The Company and Parent each (i) acknowledge that a breach of any of its covenants contained in Section 6.5 will result in irreparable harm to the other party which will not be compensable in money damages, and (ii) agree that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the other party for a breach of such covenant.

Negotiations with Others. Until the Effective Time or the earlier termination of this Agreement pursuant to Section 9.1 hereof (a) After the time period beginning on the date hereof and prior ending on such date being hereinafter referred to as the Effective Time "No-Shop Period"), neither the Company nor the Stockholder shall, nor shall the Company authorize any of its employees, officers, stockholders or earlier termination agents to, directly or indirectly, solicit, initiate or engage in discussions or negotiations with, or provide any information to, or take any other action to facilitate the efforts of, any third party with respect to a financing of, or investment in, the Company (including by way of the purchase of any capital stock or other securities from the Company or the Stockholder) or the acquisition of the Company (including by way of merger, purchase of capital stock or purchase of assets) or any of its assets by such third party, or that would otherwise be inconsistent with the terms of this Agreement, or that would prohibit the performance of the Company's obligations hereunder or that could be expected to diminish the likelihood of or render impracticable the consummation of the transactions contemplated hereby (each as described above (other than the Merger and the transactions contemplated herein), an "Acquisition Transaction"), or enter into any agreement or arrangement with respect to, or authorize or consummate, an Acquisition Transaction. If the Company or any employee, officer, stockholder or agent of the Company receives an unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such party shall immediately notify Parent of such offer or proposal and shall immediately reject such offer. Upon the execution and delivery of this Agreement, the Company and the Stockholder shall notterminate any and all discussions, if any, it or he may be having with respect to an Acquisition Transaction. During the No-Shop Period, neither the Company nor the Stockholder shall, nor shall the Company authorize any of its employees, officers, stockholders or agents to, directly or indirectly, take any of the following actions negotiate or discuss with any party other than Parent and its designees: (i) solicit, initiate or participate in or encourage any negotiations or discussions with respect to, any offer or proposal to acquire all or substantially all of the Company's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise, (ii) disclose any information not customarily disclosed to any person concerning the Company's business and properties or afford to any person or entity access that provides or proposes to its propertiesprovide online services, books the provision of financing to the Company by such person or recordsentity or any merger, (iii) assist consolidation, business combination or cooperate similar transaction with any proposal for a transaction of the type referred to in clause (i) such person or (iv) disclose the terms or conditions of this Agreement or the Letter of Intent dated May 25, 1999 between the Company and Parent. In the event the Company shall receive any offer or proposalentity, 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) Either party may refuse to close if in good faith it determines that the transaction cannot be done as a pooling of interest transaction (a "Permitted Termination"). If the transaction shall fail to close due to a party ---------------------- refusing to close after all of the conditions set forth in Article VIII have been satisfied or waived by the party entitled to so waive and one of the parties (for purposes of this paragraph Parent and Subsidiary shall constitute one party) advises the other that it is ready, willing and able to effect the Merger and the other party fails to effect the Merger for any reason other than a Permitted Termination, then (x) if Parent refused to execute this Agreement or close, Parent agrees to promptly pay to the Company $3,000,000 and in addition make a loan promptly to the Company in a principal amount which, together with the principal amount of all other loans by Parent to the Company then outstanding, equals $3,000,000 and (y) if the Company refused to execute this Agreement or close, the Company shall grant most favored nation status as to both price and priority for sales of the Company's products to C-COR for a period of one year from the date hereof, the Company shall promptly pay to Parent $3,000,000 and the Company shall pay an additional $3,000,000 to Parent in the event the Company directly or indirectly merges or sells substantially all of its stock (including by supporting a tender offer for its shares) or assets or agrees to do any of the foregoing prior to January 2001. Debt issued to Parent pursuant to the foregoing sentence shall accrue interest at the prime rate, shall be convertible into Company Common Stock immediately prior to a change in control of the Company and shall mature on the earlier of a change in control of the Company or January 2001. (c) The Company and Parent each (i) acknowledge that a breach of any of its covenants contained in Section 6.5 will result in irreparable harm to the other party which will not be compensable in money damages, and (ii) agree that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the other party for a breach of such covenant.

Negotiations with Others. (a) After the date hereof and prior Prior to the Effective Termination Time or earlier termination of this Agreement(as defined below), the Company shall notnot (and shall use reasonable efforts to cause its officers, managers, employees, members, agents, representatives and affiliates not to), directly or indirectly, take any of the following actions with any party other than Parent HP and its designees: (i) solicit, encourage, initiate or participate in or encourage any negotiations or discussions with respect to, any offer or proposal to acquire or license all or substantially all all, or a significant portion, of the Company's business ’s business, technologies or properties (other than the licensing of software, the sale of products or inventory and properties the provision of services in the ordinary course of business) or capital stock any of the Company’s equity (other than granting employee options and ESPP purchases in the ordinary course) whether by merger, purchase of assets, equity purchase (including convertible securities), license, tender offer or otherwiseotherwise (including any option or right with respect to any of the foregoing), or enter into any agreement providing for, or effect, any such transaction, (ii) disclose any information not customarily disclosed in the ordinary course of business to any person (other than the Company’s representatives) concerning the Company's business and ’s business, technologies or properties or afford to any person or entity including, but not limited to, financing parties, access to its properties, books or records, (iii) assist or cooperate with any person to (x) make any proposal for a transaction to purchase all or any portion of the type referred to Company’s equity (other than granting employee options and ESPP purchases in clause the ordinary course) or (iy) license all or any material portion of the Company’s assets (other than the licensing of software, the sale of products or inventory and the provision of services in the ordinary course of business), or (iv) disclose enter into any agreement or arrangement with any person providing for the terms acquisition or conditions licensing of this Agreement all or the Letter any significant portion of Intent dated May 25, 1999 between the Company (other than the licensing of software, the sale of products or inventory and Parentthe provision of services in the ordinary course of business) (whether by way of merger, purchase of assets, equity purchase, license, tender offer or otherwise). In the event that the Company shall receive receive, or shall become aware that any of its officers, managers, employees, members, agents, representatives or affiliates has received, 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. (ba) Either party may refuse to close if in good faith it determines that the transaction cannot be done as a pooling of interest transaction (a "Permitted Termination"). If the transaction shall fail to close due to a party ---------------------- refusing to close after all of the conditions set forth in Article VIII have been satisfied or waived by the party entitled to so waive and one of the parties (for purposes of this paragraph Parent and Subsidiary shall constitute one party) advises the other that it is ready, willing and able to effect the Merger and the other party fails to effect the Merger for any reason other than a Permitted Termination, then (x) if Parent refused to execute this Agreement or close, Parent agrees to promptly pay to the Company $3,000,000 and in addition make a loan promptly to the Company in a principal amount which, together with the principal amount of all other loans by Parent to the Company then outstanding, equals $3,000,000 and (y) if the Company refused to execute this Agreement or close, the Company shall grant most favored nation status as to both price and priority for sales of the Company's products to C-COR for a period of one year from the date hereof, the Company shall promptly pay to Parent $3,000,000 and the Company shall pay an additional $3,000,000 to Parent in the event the Company directly or indirectly merges or sells substantially all of its stock (including by supporting a tender offer for its shares) or assets or agrees to do any of the foregoing prior to January 2001. Debt issued to Parent pursuant to the foregoing sentence shall accrue interest at the prime rate, shall be convertible into Company Common Stock immediately prior to a change in control of the Company and shall mature on the earlier of a change in control of the Company or January 2001. (c) The Company and Parent each (i) acknowledge that a breach of any of its covenants contained in Section 6.5 will result in irreparable harm to the other party which will not be compensable in money damages, and (ii) agree that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the other party for a breach of such covenant.extent

Negotiations with Others. Until the Effective Time or the earlier termination of this Agreement pursuant to Section 9.1 hereof (a) After the time period beginning on the date hereof and prior ending on such date being hereinafter referred to as the Effective Time "No-Shop Period"), neither the Company or earlier termination any Stockholder shall, nor shall the Company authorize any of its employees, officers, stockholders or agents to, directly or indirectly, solicit, initiate or engage in discussions or negotiations with, or provide any information to, or take any other action to facilitate the efforts of, any third party with respect to a financing of, or investment in, the Company (including by way of the purchase of any capital stock or other securities from the Company or any Stockholder) or the acquisition of the Company (including by way of merger, purchase of capital stock or purchase of assets) or any of its assets by such third party, or that would otherwise be inconsistent with the terms of this Agreement, or that would prohibit the performance of the Company's obligations hereunder or that could be expected to diminish the likelihood of or render impracticable the consummation of the transactions contemplated hereby (each as described above (other than the Merger and the transactions contemplated herein), an "Acquisition Transaction"), or enter into any agreement or arrangement with respect to, or authorize or consummate, an Acquisition Transaction. If the Company or any employee, officer, stockholder or agent of the Company receives an unsolicited offer or proposal to enter negotiations relating to an Acquisition Transaction, such party shall immediately notify Parent of such offer or proposal and shall immediately reject such offer. Upon the execution and delivery of this Agreement, the Company and the Stockholders shall notterminate any and all discussions, if any, it or they may be having with respect to an Acquisition Transaction. During the No-Shop Period, neither the Company or any Stockholder shall, nor shall the Company authorize any of its employees, officers, stockholders or agents to, directly or indirectly, take any of the following actions negotiate or discuss with any party other than Parent and its designees: (i) solicit, initiate or participate in or encourage any negotiations or discussions with respect to, any offer or proposal to acquire all or substantially all of the Company's business and properties or capital stock whether by merger, purchase of assets, tender offer or otherwise, (ii) disclose any information not customarily disclosed to any person concerning the Company's business and properties or afford to any person or entity access that provides or proposes to its propertiesprovide online services, books the provision of financing to the Company by such person or recordsentity or any merger, (iii) assist consolidation, business combination or cooperate similar transaction with any proposal for a transaction of the type referred to in clause (i) such person or (iv) disclose the terms or conditions of this Agreement or the Letter of Intent dated May 25, 1999 between the Company and Parent. In the event the Company shall receive any offer or proposalentity, 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) Either party may refuse to close if in good faith it determines that the transaction cannot be done as a pooling of interest transaction (a "Permitted Termination"). If the transaction shall fail to close due to a party ---------------------- refusing to close after all of the conditions set forth in Article VIII have been satisfied or waived by the party entitled to so waive and one of the parties (for purposes of this paragraph Parent and Subsidiary shall constitute one party) advises the other that it is ready, willing and able to effect the Merger and the other party fails to effect the Merger for any reason other than a Permitted Termination, then (x) if Parent refused to execute this Agreement or close, Parent agrees to promptly pay to the Company $3,000,000 and in addition make a loan promptly to the Company in a principal amount which, together with the principal amount of all other loans by Parent to the Company then outstanding, equals $3,000,000 and (y) if the Company refused to execute this Agreement or close, the Company shall grant most favored nation status as to both price and priority for sales of the Company's products to C-COR for a period of one year from the date hereof, the Company shall promptly pay to Parent $3,000,000 and the Company shall pay an additional $3,000,000 to Parent in the event the Company directly or indirectly merges or sells substantially all of its stock (including by supporting a tender offer for its shares) or assets or agrees to do any of the foregoing prior to January 2001. Debt issued to Parent pursuant to the foregoing sentence shall accrue interest at the prime rate, shall be convertible into Company Common Stock immediately prior to a change in control of the Company and shall mature on the earlier of a change in control of the Company or January 2001. (c) The Company and Parent each (i) acknowledge that a breach of any of its covenants contained in Section 6.5 will result in irreparable harm to the other party which will not be compensable in money damages, and (ii) agree that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the other party for a breach of such covenant.