Common use of No Solicitation by Seller Clause in Contracts

No Solicitation by Seller. (a) From and after the date of this Agreement until the earlier of March 15, 2000 or termination of this Agreement pursuant to its terms, Seller will not, and will instruct its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, (i) solicit or knowingly encourage submission of, any proposals or offers by any person, entity or group (other than Buyer and its affiliates, agents and representatives) or (ii) participate in any discussions or negotiations with, or disclose any non-public information concerning Seller to, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents and representatives), in connection with any potential or actual Acquisition Proposal (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (i) any merger, consolidation, sale of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) as promptly as practicable notify Buyer of the significant terms and conditions of any such Acquisition Proposal. In addition, subject to the other provisions of this Section 5.3, from and after the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to its terms, Seller will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Buyer).

No Solicitation by Seller. (a) From and after the date of this Agreement hereof until the earlier of March 15, 2000 the Effective Time or termination of the date on which this Agreement pursuant to its termsis terminated in accordance with the terms hereof, Seller will shall not, and will instruct nor shall it permit any of its directors, subsidiaries or any of its or their officers, employeesdirectors or employees or any investment banker, representativesfinancial advisor, investment bankersattorney, agents and affiliates not accountant, agent or other representative retained by it or by any of its subsidiaries to, directly or indirectly, indirectly through any representative or otherwise (i) solicit or knowingly encourage initiate the submission of, any proposals or offers by Takeover Proposal involving Seller (as hereafter defined), (ii) enter into any person, entity or group agreement with respect to any Takeover Proposal involving Seller (other than Buyer and its affiliatesa confidentiality agreement to the extent information is permitted to be furnished to any Person pursuant to this Section 6.2(a)), agents and representatives) or (iiiii) participate in any discussions or negotiations withregarding, or disclose furnish to any non-public Person any information concerning Seller with respect to, or afford take any access other action to facilitate knowingly any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal involving Seller; provided, however, that, nothing contained in this Agreement shall prevent Seller or its Board of Directors from (A) complying with Rules 14-d(9) and 14-e(2) under the Exchange Act or publicly disclosing the existence of a Takeover Proposal involving Seller to the properties, books extent required by applicable law or records of Seller (B) furnishing nonpublic information to, or otherwise assist entering into discussions or facilitate, or enter into any agreement or understanding negotiations with, any person, entity or group (other than Buyer and its affiliates, agents and representatives), Person in connection with any potential an unsolicited bona fide Takeover Proposal involving Seller by such Person, if, (x) the failure to take such action would, in the good faith judgment of the Board of Directors of Seller, taking into consideration the advice of outside legal counsel of Seller, violate the fiduciary duties of the Board of Directors of Seller to the Company's stockholders under applicable law, and (y) prior to furnishing such nonpublic information to, or actual Acquisition Proposal (as hereinafter defined) with respect to Sellerentering into discussions or negotiations with, such Person, such Board of Directors receives from such Person an executed confidentiality agreement. For the purposes of this Agreement, an "Acquisition ProposalTakeover Proposal involving Seller" with respect to an entity means any proposal by any third party for a merger, consolidation or other business combination involving Seller or any of its subsidiaries or any proposal or offer relating to (i) acquire in any mergermanner, consolidationdirectly or indirectly, sale a 25% or greater equity interest in, 25% or more of substantial the voting securities of, or 25% or more of the assets or similar transactions involving the entity of, Seller or any subsidiaries of the entity (its subsidiaries, other than sales the transactions contemplated by this Agreement and any related transaction entered into by Seller or any of assets or inventory its subsidiaries in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) as promptly as practicable notify Buyer of the significant terms and conditions of any such Acquisition Proposal. In addition, subject to the other provisions of this Section 5.3, from and after the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to its terms, Seller will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Buyer)business.

No Solicitation by Seller. (a) From and after As of the date of this Agreement until the earlier of March 15, 2000 or termination of this Agreement pursuant to its termsEffective Date, Seller will shall immediately cease and cause to be terminated any discussions or negotiations with any Person with respect to an Acquisition Proposal. Seller shall not, and will instruct shall not authorize or permit its directors, officers, employees, representatives, investment bankers, agents and affiliates not Representatives to, directly or indirectly, indirectly (i) solicit solicit, initiate or knowingly facilitate or encourage submission of(including by way of furnishing non-public information) any inquiries or proposals that constitute, or would reasonably be expected to lead to, any proposals or offers by any personAcquisition Proposal, entity or group (other than Buyer and its affiliates, agents and representatives) or (ii) participate in any discussions or negotiations withwith any third party regarding any Acquisition Proposal or (iii) enter into any agreement related to any Acquisition Proposal; provided, however, that if after the Effective Date the Comarco Board receives an unsolicited, written Acquisition Proposal in circumstances not involving a breach of this Section 5.06 and the Comarco Board determines in good faith that such Acquisition Proposal constitutes, or disclose is reasonably likely to result in, a Superior Offer and with respect to which the Comarco Board determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to Comarco’s shareholders under applicable Law, then Comarco may, at any time prior to obtaining the Required Shareholder Vote (but in no event after obtaining the Required Shareholder Vote) and after providing Purchaser not less than two Business Days prior written notice of its intention to take such actions, (A) furnish information with respect to the Seller to the Person making such Acquisition Proposal, but only after such Person enters into a customary confidentiality agreement with Seller, provided that (1) such new confidentiality agreement may not include any provision calling for an exclusive right to negotiate with the Seller and (2) the Seller advises Purchaser of all such non-public information delivered to such Person concurrently with its delivery to such Person and concurrently with its delivery to such Person the Seller delivers to Purchaser all such information not previously provided to Purchaser, (B) participate in discussions and negotiations with such Person regarding such Acquisition Proposal and (C) enter into the confidentiality agreement contemplated by clause (A) of this proviso. Subject to the fiduciary duties of the Comarco Board, the Seller shall use commercially reasonable efforts to enforce each confidentiality, standstill or similar agreement to which the Seller or any of its Affiliates is a party or by which any of them is bound. (b) In addition to the other obligations of the Seller set forth in this Section 5.06, Seller shall promptly advise Purchaser, orally and in writing, and in no event later than 48 hours after receipt, if any proposal, offer, inquiry or indication of interest is initially received by Seller that would reasonably be expected to lead to an Acquisition Proposal, or any non-public information concerning Seller tois initially requested from, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents and representatives), in connection with any potential or actual Acquisition Proposal (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (i) any merger, consolidation, sale of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with are sought to be initiated or continued with, the Seller in respect of any parties conducted heretofore with respect Acquisition Proposal, and shall, in any such notice to any Purchaser, indicate the identity of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any Person making such proposal, offer, inquiry or proposal is made or any information or access is requested in writing in connection with an Acquisition Proposal or potential Acquisition Proposal other indication of interest and (ii) as promptly as practicable notify Buyer of the significant material terms and conditions of any proposals or offers or the nature of any inquiries or indications of interest (including copies of any written materials received from or on behalf of such Person to the extent allowed by Seller pursuant to its contractual obligations), and thereafter shall promptly keep Purchaser informed of all material changes to the terms of any such proposals, offers, inquiries or requests (including copies of any additional written materials received from or on behalf of such Person to the extent allowed by Seller pursuant to its contractual obligations). (c) Except as expressly permitted by this Section 5.06(c), the Comarco Board shall not (i)(A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Purchaser, the Comarco Board Recommendation or (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (ii) approve or recommend, or propose publicly to approve or recommend, or cause or authorize any Seller to enter into, any letter of intent, agreement in principle, memorandum of understanding, merger, acquisition, purchase or joint venture agreement or other agreement related to any Acquisition Proposal (other than a confidentiality agreement in accordance with Section 5.06(a) above) (each, a “Seller Acquisition Agreement”). Notwithstanding the foregoing or any other provision of this Agreement, (x) the Comarco Board may withdraw or modify the Comarco Board Recommendation, or recommend an Acquisition Proposal. In addition, subject if such Board determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to make such withdrawal, modification or recommendation would be inconsistent with its fiduciary duties to the other provisions Seller’s shareholders under applicable Law and (y) if the Comarco Board receives an unsolicited, written Acquisition Proposal that was made in circumstances not involving a breach of this Section 5.35.06(a) (above) and that such Board determines in good faith constitutes a Superior Offer, from the Comarco Board may, in response to such Superior Offer and after within the date of this three Business Day period described below, cause Seller to enter into a Seller Acquisition Agreement until the earlier of the Effective Time and termination of with respect to such Superior Offer but only if Seller shall have concurrently with entering into such Seller Acquisition Agreement terminated this Agreement pursuant to its termsArticle IX and prior thereto or concurrently therewith paid the Termination Fee required pursuant to Article IX, but in any event only after the third Business Day following Purchaser’s receipt of written notice (the “Notice”) from the Seller will not, advising Purchaser that the Comarco Board is prepared to enter into a definitive agreement with respect to such Superior Offer and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation terminate this Agreement (it being understood that Seller shall be required to deliver a new Notice in support respect of any Acquisition Proposal made by any person, entity or group revised Superior Offer (other than Buyerimmaterial revisions) from such third party or its Affiliates that Seller proposes to accept, attaching the most current version of such agreement to such Notice (which version shall be updated on a current basis)), and only if, during such three Business Day period, Seller and its Representatives shall have negotiated in good faith with Purchaser and Purchaser’s Representatives to make such adjustments in the terms of this Agreement such that the Acquisition Proposal would no longer constitute a Superior Offer and, at the end of such three Business Day period, after taking into account any such adjusted terms as may have been proposed by Purchaser in writing (and not withdrawn) since its receipt of such Notice, the Comarco Board has again in good faith made the determination referred to above in this clause (y). (d) Nothing contained in this Section 5.06 or elsewhere shall prevent Seller from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal.

No Solicitation by Seller. For a period of one year following the Effective Time, Seller will not (a) From establish a branch deposit and after loan business in Nevada (the date of this Agreement until the earlier of March 15, 2000 “Restricted Territory”) or termination of this Agreement pursuant to its terms, Seller will not, and will instruct its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, (b) directly or indirectly, solicit deposits or loans, from customers whose Deposit Liabilities and/or Loans are assumed or acquired by Purchaser pursuant to this Agreement, except (i) solicit or knowingly encourage submission of, any proposals or offers by any person, entity or group (as may occur in connection with mass media advertising and other than Buyer and its affiliates, agents and representatives) or forms of solicitations directed to the public generally outside of Nevada; (ii) participate in to Persons who have a banking, lending or other business relationship outside of the Nevada Franchise with Seller or any discussions of its Affiliates, and (iii) to Persons who have a banking, lending or negotiations with, or disclose other business relationship through any non-public information concerning Seller to, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliatesAffiliates’ operations outside the Restricted Territory that are not included as part of the Transferred Assets. The foregoing restrictions shall not prohibit Seller or any of its Affiliates from (A) engaging in the Restricted Territory in the lines of business excluded from the Transferred Assets, agents and representatives), (B) extending credit to or accepting deposits from any Person in connection with the banking business outside of the Restricted Territory of Seller or any potential or actual Acquisition Proposal of its Affiliates, and (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (iC) any merger, consolidation, sale presence or activities of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory Seller in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing Restricted Territory in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) as promptly as practicable notify Buyer deposit liabilities that were a part of the significant terms Nevada Franchise prior to the Effective Time and conditions not assumed by Purchaser. It shall not be a violation of any this Section to take deposits or make loans where such Acquisition Proposaldeposits and/or loans have not been solicited in violation of this Section. In addition, subject to the other provisions of restrictions contained in this Section 5.3shall not be 43 binding upon or apply to any Person who merges, from consolidates, or otherwise becomes affiliated with Seller, or any of such Persons’ Affiliates or successors, as a result of a business combination transaction with or acquisition of or by Seller or any of its Affiliates, if such transaction was not undertaken for the primary purpose of re-entering the retail and after corporate branch banking business in the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to its terms, Seller will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Buyer)Restricted Territory.

No Solicitation by Seller. For a period of one year following the Effective Time, Seller will not (a) From establish a branch deposit and after loan business in Nevada (the date of this Agreement until the earlier of March 15, 2000 “Restricted Territory”) or termination of this Agreement pursuant to its terms, Seller will not, and will instruct its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, (b) directly or indirectly, solicit deposits or loans, from customers whose Deposit Liabilities and/or Loans are assumed or acquired by Purchaser pursuant to this Agreement, except (i) solicit or knowingly encourage submission of, any proposals or offers by any person, entity or group (as may occur in connection with mass media advertising and other than Buyer and its affiliates, agents and representatives) or forms of solicitations directed to the public generally outside of Nevada; (ii) participate in to Persons who have a banking, lending or other business relationship outside of the Nevada Franchise with Seller or any discussions of its Affiliates, and (iii) to Persons who have a banking, lending or negotiations with, or disclose other business relationship through any non-public information concerning Seller to, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliatesAffiliates’ operations outside the Restricted Territory that are not included as part of the Transferred Assets. The foregoing restrictions shall not prohibit Seller or any of its Affiliates from (A) engaging in the Restricted Territory in the lines of business excluded from the Transferred Assets, agents and representatives), (B) extending credit to or accepting deposits from any Person in connection with the banking business outside of the Restricted Territory of Seller or any potential or actual Acquisition Proposal of its Affiliates, and (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (iC) any merger, consolidation, sale presence or activities of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory Seller in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing Restricted Territory in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) as promptly as practicable notify Buyer deposit liabilities that were a part of the significant terms Nevada Franchise prior to the Effective Time and conditions not assumed by Purchaser. It shall not be a violation of any this Section to take deposits or make loans where such Acquisition Proposaldeposits and/or loans have not been solicited in violation of this Section. In addition, subject to the other provisions of restrictions contained in this Section 5.3shall not be binding upon or apply to any Person who merges, from consolidates, or otherwise becomes affiliated with Seller, or any of such Persons’ Affiliates or successors, as a result of a business combination transaction with or acquisition of or by Seller or any of its Affiliates, if such transaction was not undertaken for the primary purpose of re-entering the retail and after corporate branch banking business in the date of this Agreement until the earlier of the Effective Time and termination of this Agreement pursuant to its terms, Seller will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Buyer)Restricted Territory.

No Solicitation by Seller. (a) From and after the date of Except as expressly permitted by this Agreement until the earlier of March 15, 2000 or termination of this Agreement pursuant to its termsSection 6.2, Seller will notwill, and will instruct cause each of its directorsControlled Affiliates (including the Acquired Entity) and direct and use reasonable best efforts to cause each of its Representatives, officersto: (i) immediately cease any direct or indirect solicitation, employees, representatives, investment bankers, agents discussions or negotiations with any Persons that may be ongoing with respect to a Seller Takeover Proposal and affiliates not torequest in writing that each such Person promptly return or destroy all confidential information furnished to such Person by or on behalf of Seller in connection with any such Seller Takeover Proposal and (ii) not, directly or indirectlyindirectly through another Person, (iA) solicit solicit, initiate or knowingly facilitate or encourage submission (including by way of furnishing non-public information) any inquiries, discussions or requests regarding, or the making of any proposal, inquiry or offer that constitutes, or could reasonably be expected to lead to, a Seller Takeover Proposal (an “Inquiry”) (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 6.2 (such as answering unsolicited phone calls to notify the applicable caller of the existence of the restrictions in this Section 6.2) will not be deemed to “facilitate” for purposes of, any proposals or offers by any personotherwise constitute a violation of, entity this Section 6.2), (B) engage in, continue or group (other than Buyer and its affiliates, agents and representatives) or (ii) otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information or provide access to its properties, books or records in connection with, or disclose that could reasonably be expected to lead to (or otherwise advance), a Seller Takeover Proposal or an Inquiry, except to notify such Person of the existence of the restrictions in this Section 6.2, (C) approve, adopt, recommend, endorse, declare advisable, agree to or enter into, or propose to approve, adopt, recommend, endorse, declare advisable, agree to or enter into, any letter of intent, joint venture agreement, partnership agreement, term sheet, agreement in principle, stock or asset purchase agreement, merger agreement, confidentiality agreement or other similar Contract with respect to a Seller Takeover Proposal or an Inquiry, or (D) grant any waiver, amendment, termination, modification or release under any standstill or confidentiality agreement, and Seller will enforce all such provisions contained therein. (b) Notwithstanding anything to the contrary contained in Section 6.2(a) or any other provision of this Agreement, if at any time prior to obtaining the Stockholder Approval, Seller or any of its Representatives receives an unsolicited and bona fide written Seller Takeover Proposal from any Person or group of Persons, which Seller Takeover Proposal did not result from a breach of this Section 6.2 (other than a de minimis breach), Seller and its Representatives may, to the extent that the Seller Board or any duly authorized committee thereof determines, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that the failure to take such action, in light of Seller Takeover Proposal and the terms of this Agreement, would reasonably be expected to result in a breach of the Seller Board’s fiduciary duties under applicable Law and that such Seller Takeover Proposal constitutes or would reasonably be expected to lead to a Seller Superior Proposal, (i) furnish, following execution of an Acceptable Confidentiality Agreement with such Person, information (including non-public information) with respect to Seller and its Controlled Affiliates (including the Acquired Entity) to the Person or group of Persons who has made such Seller Takeover Proposal (provided, that (A) Seller will, promptly following such disclosure, provide to Buyer a copy of such Acceptable Confidentiality Agreement and any non-public information concerning Seller toor any of its Controlled Affiliates (including the Acquired Entity) that is made available to such Person to the extent not previously provided to Buyer or its Representatives, and (B) competitively sensitive information or afford data provided to any such Person who is a competitor, supplier or customer of Seller or any of its Controlled Affiliates (including the Acquired Entity) will be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, as reasonably determined by Seller upon the properties, books or records advice of Seller to, outside legal counsel) and (ii) engage in or otherwise assist participate in discussions or facilitatenegotiations with the Person or group of Persons making such Seller Takeover Proposal. (c) Seller will promptly inform Buyer orally (within twenty-four (24) hours) and in writing (within forty-eight (48) hours) of any Inquiry, proposals or offers with respect to any Seller Takeover Proposal (indicating the identity of the Persons or Persons involved and material terms of any such Seller Takeover Proposal) is received by Seller, any of its Controlled Affiliates (including the Acquired Entity) or any of its or their Representatives. In the event that any Person modifies its Seller Takeover Proposal in any material respect, Seller will notify Buyer in within twenty-four (24) hours of such material modification (indicating the identity of the Persons or Persons involved and the material terms thereof). Seller agrees that it and its Controlled Affiliates (including the Acquired Entity) will not enter into any confidentiality agreement or understanding with, with any person, entity or group (Person subsequent to the date hereof other than an Acceptable Confidentiality Agreement. Without limiting the foregoing, Seller shall promptly notify Buyer orally (within twenty-four (24) hours) and in writing (within forty-eight (48) hours) (i) if Seller determines to begin providing nonpublic information or to engage in negotiations or discussions concerning an Seller Takeover Proposal or an Inquiry in accordance with Section 6.2(b) and (ii) thereafter of any change to the financial and other material terms and conditions of any Seller Takeover Proposal and otherwise keep Buyer reasonably informed of the status and terms of any such Inquiry, Seller Takeover Proposal, discussions or negotiations on a reasonably current basis, including by providing a copy of all proposals, offers or drafts of proposed agreements. Neither Seller nor any of its affiliatesControlled Affiliates (including the Acquired Entity) shall, agents and representatives), in connection with any potential or actual Acquisition Proposal (as hereinafter defined) with respect to Seller. For after the purposes date of this Agreement, an "Acquisition Proposal" enter into any confidentiality or similar agreement that would prohibit it from providing such information to Buyer. (d) Except as expressly permitted by this Section 6.2(d) or Section 6.2(e), the Seller Board and any committee thereof will not (i) (A) fail to include the Seller Board Recommendation in the Proxy Statement, (B) change, qualify, withhold, withdraw or modify, or publicly propose to, endorse, declare advisable, or change, qualify, withhold, withdraw or modify, the Seller Board Recommendation, (C) take any action by board resolution or make any recommendation, endorsement or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a customary “stop, look and listen” communication, which is not in violation of the provisions of this Section 6.2 (it being understood that the Seller Board may refrain from taking a position with respect to an entity means any proposal a Seller Takeover Proposal until the close of business as of the tenth (10th) Business Day after the commencement of a tender offer in connection with such Seller Takeover Proposal pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered a modification of the Seller Board Recommendation adverse to Buyer); provided, that, if the Seller Board fails to take a position or offer relating takes a position after the close of business on such tenth (10th) Business Day that is not a recommendation against such offer, then such position will be considered a modification of the Seller Board Recommendation adverse to Buyer), or (D) adopt, approve or recommend, or publicly propose to approve or recommend to stockholders of Seller a Seller Takeover Proposal (the actions described in this clause (i) any mergerbeing referred to as a “Seller Adverse Recommendation Change”), consolidationor (ii) authorize, sale of substantial assets cause or similar transactions involving the entity permit Seller or any subsidiaries of its Controlled Affiliates (including the entity Acquired Entity) to enter into any letter of intent, joint venture agreement, partnership agreement, term sheet, agreement in principle, stock or asset purchase agreement, merger agreement, confidentiality agreement or other similar Contract with respect to any Seller Takeover Proposal or Inquiry (other than sales an Acceptable Confidentiality Agreement entered into in accordance with Section 6.2(b)) (each, a “Seller Acquisition Agreement”). Notwithstanding anything to the contrary set forth in this Agreement, prior to the time Stockholder Approval is obtained, Seller may (i) make a Seller Adverse Recommendation Change in response to a Seller Takeover Proposal or (ii) terminate this Agreement and enter into a Seller Acquisition Agreement pursuant to Section 9.1(c)(ii) if prior to taking any such action the Seller Board or any duly authorized committee thereof has determined, after consultation with its financial advisors of assets nationally recognized reputation and outside legal counsel, that (1) failure to take such action would reasonably be expected to result in a breach of the Seller Board’s fiduciary duties under applicable Law, and (2) such Seller Takeover Proposal constitutes a Seller Superior Proposal; provided, however, that (1) Seller has given Buyer at least four (4) Business Days’ prior written notice of its intention to take such action, (2) unless Buyer indicates in writing to Seller that it does not wish to negotiate, Seller has negotiated, and has caused its Representatives to negotiate, in good faith with Buyer during such notice period to enable Buyer to propose in writing an offer binding on Buyer to effect revisions to this Agreement such that it would cause such Seller Superior Proposal to no longer constitute a Seller Superior Proposal, (3) following the end of such notice period, the Seller Board or inventory any duly authorized committee thereof will have considered in good faith any such binding offer, and will have determined, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that Seller Superior Proposal continues to constitute a Seller Superior Proposal if the revisions proposed in such binding offer were to be given effect, and (4) in the ordinary course event of business any material change to the terms of such Seller Superior Proposal, Seller will, in each case, again comply with this Section 6.2(d) and will have delivered to Buyer an additional notice consistent with that described in clause (1) above and the notice period will have recommenced (except that the notice period will be at least two (2) Business Days rather than the four (4) Business Days otherwise contemplated by clause (1) above). (e) Prior to the time the Stockholder Approval is obtained, the Seller Board also may effect a Seller Adverse Recommendation Change if and only if: (i) the Seller Board or permitted any duly authorized committee thereof has determined, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that failure to take such action would reasonably be expected to result in a breach of the Seller Board’s fiduciary duties under applicable Law; (ii) such action is not in response to the receipt, existence of or terms of a Seller Takeover Proposal or a Seller Superior Proposal or any inquiry related thereto or the consequences thereof (which is governed by Section 6.2(c)); (iii) such action is in response to a material development, fact, change, event, effect, occurrence or circumstance that is not known or reasonably foreseeable, or, if known or reasonably foreseeable, the consequences of which are not known or reasonably foreseeable, to the Seller Board as of the date hereof and becomes known to the Seller Board prior to the time of Stockholder Approval (excluding any Inquiry, Seller Takeover Proposal or Seller Superior Proposal, the “Intervening Event”); and (iv) prior to taking such action, (A) Seller Board has given Buyer at least four (4) days’ prior written notice of its intention to take such action absent any revision to the terms and conditions of this Agreement, which notice will describe the Intervening Event and the basis for such intended Seller Adverse Recommendation Change in reasonable detail, (B) unless Buyer indicates in writing to Seller that it does not wish to negotiate, Seller has negotiated, and has caused its Representatives to negotiate, in good faith with Buyer during such notice period after giving any such notice to enable Buyer to propose in writing an offer binding on Buyer to effect revisions to the terms of this Agreement), and (C) at the end of such notice period, Seller Board or any duly authorized committee thereof will have considered in good faith any such binding offer, and will have determined, based on the information then available and after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that failure to make such Seller Adverse Recommendation Change due to the Intervening Event would reasonably be expected to result in a breach of the Seller Board’s fiduciary duties under applicable Law. (f) Nothing contained in this Section 6.2 or in Section 6.11 will prohibit Seller or the Seller Board from (i) taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to Seller’s stockholders if, in Seller Board’s determination in good faith after consultation with outside counsel, such disclosure is required under applicable Law, or (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of issuing a tender offer or an exchange offer)“stop, (iiilook and listen” communication pursuant to Rule 14d-9(f) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns; provided, or has the right to acquire beneficial ownership ofthat, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (ivx) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage disclosures made as permitted in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will clause (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing of this Section 6.2(f) shall be deemed to be a Seller Adverse Recommendation Change unless the Seller Board expressly publicly reaffirms Seller Board Recommendation in connection with an Acquisition Proposal or potential Acquisition Proposal and such disclosure. (iig) as Seller will promptly as practicable notify Buyer of the significant terms and conditions of any such Acquisition Proposal. In addition, subject request each Person that has executed a confidentiality agreement prior to the other provisions of this Section 5.3, from and after the date of this Agreement until in connection with such Person’s consideration of an acquisition of Seller return or destroy all confidential information furnished to such Person prior to the earlier of the Effective Time and termination date of this Agreement pursuant by or on behalf of Seller or any of its Representatives and Seller will immediately terminate all physical and electronic data room access for any such Person and any of its Representatives to its termsdiligence or other information regarding Seller. If any such Person requests a waiver of the standstill provision of any such agreement, Seller will notonly waive such standstill provisions if and to the extent that the Seller Board has determined, after consultation with its financial advisors of nationally recognized reputation and will instruct their respective directorsoutside legal counsel, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation that the failure to do so would reasonably be expected to result in support a breach of any Acquisition Proposal made by any person, entity or group (other than Buyer)the Seller Board’s fiduciary duties under applicable Law.

No Solicitation by Seller. (a) From and after the date of this Agreement until the earlier of March 15, 2000 or termination of this Agreement pursuant to its termsExcept as provided in Section 5.05(b), Seller will not, and will instruct its directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, (i) solicit or knowingly encourage submission of, any proposals or offers by any person, entity or group (other than Buyer and its affiliates, agents and representatives) or (ii) participate in any discussions or negotiations with, or disclose any non-public information concerning Seller to, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents and representatives), in connection with any potential or actual Acquisition Proposal (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (i) any merger, consolidation, sale of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Seller will (i) notify Buyer as promptly as practicable if any inquiry or proposal is made or any information or access is requested in writing in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) as promptly as practicable notify Buyer of the significant terms and conditions of any such Acquisition Proposal. In addition, subject to the other provisions of this Section 5.3agrees that, from and after the date of this Agreement until the earlier of the Effective Time and or the termination of this Agreement pursuant to its termsSection 7.01, Seller will shall not, and will instruct their respective nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers, employees, representatives, investment bankers, agents and affiliates not officers or employees or any representative retained by it (including Seller's Financial Advisor) or any of its Subsidiaries to, directly or indirectlyindirectly through another Person, make (i) solicit, initiate, entertain or authorize encourage (including by way of furnishing non-public information) any public statementinquiries or the making of an Acquisition Proposal, recommendation or solicitation (ii) participate in support any discussions or negotiations regarding any Acquisition Proposal; PROVIDED, HOWEVER, that if, at any time, the Board of Directors of Seller determines in good faith, after consultation with and receipt of advice from outside counsel, that it is necessary to do so in order to act in a manner consistent with its fiduciary duties to Seller's stockholders under applicable law, Seller may, in response to a Superior Proposal (as defined below) and subject to delivering a Seller Notice (as defined in paragraph (c) below) and compliance with the other provisions of paragraph (c) below, following delivery of Seller Notice (x) furnish information with respect to Seller and its Subsidiaries to any Person making such Acquisition Proposal pursuant to a confidentiality agreement entered into between such Person and Seller with terms no less favorable to Seller than those contained in the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Acquisition Proposal. For purposes of this Agreement, an "Acquisition Proposal" means any inquiry, proposal or offer from any Person (i) relating to any direct or indirect acquisition or purchase of (A) a business that constitutes 15% or more of the net revenues, net income or the assets of Seller and its Subsidiaries, taken as a whole, (B) 20% or more of any class of equity securities of Seller or (C) any material equity interest in any Subsidiary of Seller (i.e., in excess of 20% of the outstanding capital stock of such Subsidiary), (ii) relating to any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of any class of equity securities of Seller or any material equity interest in any of its Subsidiaries, or (iii) relating to any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Seller or any of its Subsidiaries, in each case, other than the transactions contemplated by this Agreement. Immediately following the execution and delivery of this Agreement by the parties hereto, Seller will cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted with respect to the foregoing. Promptly following the execution of this Agreement by the parties hereto, Seller will request each Person that has, prior to the date of this Agreement, executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal made to return or destroy all confidential information heretofore furnished to such Person by or on behalf of Seller or any person, entity or group (other than Buyer)of its Subsidiaries.

No Solicitation by Seller. (a) From and after Seller agrees that from the date of this Agreement hereof until the earlier of March 15, 2000 the Closing or the termination of this Agreement pursuant to Agreement, neither it nor any of the Seller Companies: (i) will (or will permit its termsor its Subsidiaries’ officers, Seller will not, and will instruct its directors, officers, employees, agents or representatives, including any investment bankersbanker, agents and affiliates not attorney or accountant retained by Seller or any of its Subsidiaries, to) solicit, directly initiate or indirectlyencourage (including by way of furnishing non-public information) any inquiry, proposal or offer (iincluding any proposal or offer to its stockholders) solicit with respect to a third party tender offer, merger, consolidation, business combination or knowingly encourage submission ofsimilar transaction involving any assets or class of capital stock of any of the Seller Companies, or any proposals acquisition of capital stock of any of the Seller Companies or offers by a business or assets (exclusive of sales of current assets in the ordinary course of business) of any personof the Seller Companies, entity in a single transaction or group a series of related transactions, or any combination of the foregoing (other than Buyer and its affiliatesany such proposal, agents and representativesoffer or transaction being hereinafter referred to as a “Seller Acquisition Proposal”) or (ii) participate or engage in any discussions or negotiations with, or disclose any non-public information concerning a Seller to, or afford any access to the properties, books or records of Seller to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than Buyer and its affiliates, agents and representatives), in connection with any potential or actual Acquisition Proposal (as hereinafter defined) with respect to Seller. For the purposes of this Agreement, an "Acquisition Proposal" with respect to an entity means any proposal or offer relating to (i) any merger, consolidation, sale of substantial assets or similar transactions involving the entity or any subsidiaries of the entity (other than sales of assets or inventory in the ordinary course of business or permitted under the terms of this Agreement), ; and (ii) sale of 5% or more of the outstanding shares of capital stock of the entity (including without limitation by way of a tender offer or an exchange offer), (iii) the acquisition by will continue any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act) and the rules and regulations thereunder) which beneficially owns, or has the right to acquire beneficial ownership of, 5% or more of the then outstanding shares of capital stock of the entity (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto) or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. Seller will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Seller Acquisition Proposal; provided that, nothing contained in this Agreement shall prevent Seller or its Board of Directors from making any such disclosure if in the good faith judgment of Seller’s Board of Directors failure to make such disclosure would be inconsistent with its fiduciary duties under applicable law or the rules of the foregoing. TSX or the NYSE. (b) Seller agrees that it will notify Purchaser promptly (iand in any event within 24 hours) notify Buyer as promptly as practicable if any proposal or offer relating to or constituting a Seller Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Seller or any of the Seller Companies or any of their respective officers, directors, employees, agents or representatives. In connection with such notice, Seller shall indicate the identity of the person or group making such request or inquiry or proposal is made engaging in such negotiations or any information or access is requested in writing in connection with an Acquisition Proposal or potential Acquisition Proposal discussions and (ii) as promptly as practicable notify Buyer of the significant material terms and conditions of any such Seller Acquisition Proposal. In additionThereafter, subject Seller shall keep Purchaser fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the other provisions terms or conditions of any such proposal or offer. (c) Nothing in this Section 5.2 shall permit Seller or any of the Seller Companies to enter into any agreement with respect to a Seller Acquisition Proposal during the term of this Section 5.3Agreement, from and after it being agreed that, during the date term of this Agreement until the earlier Agreement, neither Seller nor any of the Effective Time and termination of this Agreement pursuant to its termsSeller Companies shall enter into any agreement with any Person that provides for, or in any way facilitates, a Seller will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than Buyer)Proposal.