Common use of No Solicitation, Etc Clause in Contracts

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company and its subsidiaries shall not (and the Company will not permit any of its or any of its subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its subsidiaries to) directly or indirectly (i) solicit, encourage, engage in discussions or negotiate with any Person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate any inquiry or effort of any Person (other than Parent) relating to the possible acquisition of the Company (b) Neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve or cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to any Alternative Acquisition Proposal, (iii) approve or recommend, or propose to approve or recommend, any Alternative Acquisition Proposal or (iv) agree or resolve to take actions set forth in clauses (i), (ii) or (iii) of this sentence. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to the Offer (the "Applicable Period"), the Board receives a Superior Company Proposal and the Board determines in good faith, after consultation with independent counsel, that it is necessary to do so in order to comply with its fiduciary obligations, the Board may, (c) The Company promptly, and in any event within 24 hours, shall advise Parent orally and in writing of any Alternative Acquisition Proposal or any inquiry with respect to or that could lead to any Alternative Acquisition Proposal, the identity of the person or group making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection with any Alternative Acquisition Proposal. (d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Board, after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under applicable law, provided, however, that except as set forth in Section 6.02(b), in no event shall the Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition Proposal. (e) For purposes of this Agreement, "Superior Company Proposal" means any proposal made by a third party to acquire all or substantially all the equity securities or assets of the Company, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which the Board determines in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation, with only customary qualifications, and independent legal counsel) to be superior for the holders of Shares, from a financial point of view, to the Offer and the Merger, taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of this Agreement, the Offer and the Merger) and (iii) that is reasonably likely to be consummated, taking into account all financial, regulatory, legal and other aspects of such proposal (including, without limitation, any antitrust or competition law approvals or non-objections).

No Solicitation, Etc. (a) From Subject to Sections 7.3(b), 7.3(c) and 7.3(f), during the period from the date of this Agreement until through the earlier of (1) the Effective Time or and (2) the termination of this AgreementAgreement pursuant to Section 9.1 (the “Pre-Closing Period”), the Company shall not, directly or indirectly, and its subsidiaries shall not (cause or permit any directors, officers, other employees, agents, attorneys, accountants, financial or other advisors and representatives of the Company will (“Representatives”) not permit any of its or any of its subsidiaries' officersto, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its subsidiaries to) directly or indirectly indirectly, (i) solicit, encourageinitiate, engage in discussions knowingly encourage or negotiate with knowingly facilitate the making, submission or announcement of any Person offer, proposal, inquiry or indication of interest relating to any Acquisition Transaction (whether such discussions or negotiations are initiated by the Company or otherwisean “Acquisition Proposal”) or take any other action intended an inquiry, indication of interest or designed to facilitate any inquiry request for information, or effort the making of any Person proposal that could reasonably be expected to lead to any Acquisition Proposal (other than Parent) relating to the possible acquisition of the Company (b) Neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger“Acquisition Inquiry”), (ii) approve or cause or permit furnish any non-public information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, (iii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to, or otherwise knowingly cooperate in any way with any person (or any representative thereof) with respect to, any Acquisition Proposal or Acquisition Inquiry, (iv) approve, endorse or recommend or propose to approve, endorse or recommend, any Acquisition Proposal or (v) enter into any letter of intent, agreement in principle, acquisition agreement intent or similar agreement constituting document or relating toany Contract contemplating, approving, endorsing or which is intended recommending or proposing to or is reasonably likely to lead to any Alternative Acquisition Proposalapprove, (iii) approve or recommend, or propose to approve endorse or recommend, any Alternative Acquisition Transaction or accepting any Acquisition Proposal; provided, however, that none of the foregoing restrictions shall apply to the Company’s and its Representatives’ interactions with Parent, Sub and their respective subsidiaries and representatives. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action taken by any Representative of the Company that, if taken by the Company would constitute a breach of this Section 7.3, shall be deemed to constitute a breach of this Section 7.3 by the Company. (b) At any time prior to 5:00 p.m., New York City time on October 14, 2017, nothing in this Agreement shall prohibit the Company or the Company Board from, furnishing non-public information regarding the Company to, or entering into discussions or negotiations (including, as a part thereof, exchanging any counterproposals) with, the Person making such Acquisition Proposal and its Representatives in response to a bona fide unsolicited written Acquisition Proposal (or a written Acquisition Proposal from a Person with whom the Company has had discussions with respect to an Acquisition Proposal prior to the date hereof pursuant to a confidentiality agreement) that is submitted to the Company by such Person (ivand not withdrawn) agree after the date hereof which the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor(s)) is, or resolve could reasonably be expected to take actions lead to, a Superior Proposal if (i) neither the Company nor any Representative of the Company shall have breached in any material respect any of the provisions set forth in clauses (i)this Section 7.3, (ii) or (iii) of this sentence. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to the Offer (the "Applicable Period"), the Board receives a Superior Company Proposal and the Board determines in good faith, after consultation with independent the Company’s outside legal counsel, that it is necessary the failure to do so in order take such action would reasonably be expected to comply be inconsistent with its the Company Board’s fiduciary obligationsobligations to the Company’s stockholders under applicable Law, (iii) prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, (A) the Board may, (c) The Company promptly, and in any event within 24 hours, shall advise gives prompt written notice to Parent orally and in writing of any Alternative Acquisition Proposal or any inquiry with respect to or that could lead to any Alternative Acquisition Proposal, the identity of the person or group making any such Alternative Acquisition Proposal or inquiry Person and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the statusCompany’s decision to furnish non-public information to, or enter into discussions or negotiations with, such Person, and (B) the Company receives from such Person an executed confidentiality agreement (an “Acceptable Confidentiality Agreement”) containing terms, including any change standstill provision, that are in all material respects no less restrictive of such person than those contained in the Confidentiality Agreement, and (iv) contemporaneously with or prior to furnishing any such non-public information to such Person, the company makes available to Parent all such non-public information (to the detailsextent such non-public information has not been previously made available to Parent). Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies Representative of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided shall be deemed to be a breach by the Company to any third party in connection with any Alternative Acquisition ProposalCompany. (d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Board, after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under applicable law, provided, however, that except as set forth in Section 6.02(b), in no event shall the Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition Proposal. (ei) For purposes of this Agreement, "a “Superior Company Proposal" means any ” shall mean a written proposal made or offer by a third party Person that the Company Board (or a committee thereof) has determined in good faith, after consultation with the Company’s outside legal counsel and its financial advisor(s), such Person has made or is financially capable of making a bona fide written offer to acquire purchase, in exchange for consideration consisting exclusively of cash or publicly traded equity or debt securities or a combination thereof, all or substantially all the equity securities or assets of the outstanding Common Stock or the Company’s assets, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which and conditions that the Company Board determines (or a committee thereof) determines, in its reasonable, good faith judgment (judgment, after consultation with a the Company’s financial adviser of nationally recognized reputation, with only customary qualificationsadvisors and outside counsel, and independent legal counsel) after taking into account the likelihood and timing of consummation of the purchase transaction contemplated by such bona fide written offering, to be superior for the holders of Shares, more favorable from a financial point of view, view to the Offer Company’s stockholders than the Merger and the Mergeris reasonably capable of being completed, taking into account all the terms and conditions of such proposal and this Agreement factors deemed relevant (including any proposal by Parent to amend the terms of this Agreement, the Offer and the Merger) and (iii) that is reasonably likely to be consummated, taking into account all financial, regulatory, legal and other aspects of such proposal (including, without limitation, any antitrust or competition law approvals or non-objectionsa “Superior Proposal”).

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement (and payment by the Company of amounts, if any, due and payable prior to the termination of this Agreement in connection with such termination pursuant to Section 8.01(e)(iii)), the Company and its subsidiaries shall not (and the Company will not permit any shall direct all of its or any of its subsidiaries' their respective officers, directors directors, agents or employees or affiliates, including without limitation any investment banker, financial advisor, attorney, or accountant or other representative retained by it the Company or any of its subsidiaries not to) directly or indirectly (i) solicit, encourage, engage in discussions or negotiate with any Person person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate any inquiry or effort the efforts of any Person person (other than Parent) including initiating, soliciting or encouraging any inquiries or the making or implementation of any proposal or offer relating to the possible acquisition of the CompanyCompany (including, without limitation, any proposal or offer to the stockholders of the Company and whether by way of merger, purchase of capital stock, purchase of assets or otherwise) or any material portion of its capital stock or assets (with any such efforts by any such person, including a firm proposal to make such an acquisition, to be referred to as an "Alternative Acquisition"), (ii) provide any information with respect to the Company or afford access to the properties, books or records of the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, or otherwise facilitate or assist the making of any proposal or offer relating to an Alternate Acquisition, (iii) enter into an agreement with any person, other than Parent, contemplating or providing for a possible Alternative Acquisition, or (iv) make or authorize any statement, recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parent. Notwithstanding the foregoing, prior to the acceptance for payment of Shares pursuant to the Offer the Company may, to the extent required by the fiduciary obligations of the Board, as determined in good faith by a majority of the disinterested members thereof after consultation with outside counsel, in response to an unsolicited bona fide written proposal for an Alternative Acquisition ("Alternative Acquisition Proposal") that was made by a person whom the Board determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of consummating a Superior Company Proposal (as defined in Section 6.02(e)), that did not result from a breach of this Section 6.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement no less restrictive than the terms of the Mutual Nondisclosure Agreement and (y) participate in discussions and negotiations with such person or group and its representatives regarding such Alternative Acquisition Proposal; provided, that, at least one (1) business day prior to taking the actions contemplated in (x) and (y) above (except that the Company shall have the right during such period to negotiate a confidentiality agreement with the person or group making such Alternative Acquisition Proposal and its representatives that is no less favorable to the Company than the Mutual Nondisclosure Agreement), the Company shall provide Parent with written notice of its right to take such action and the identity of the person making such Alternative Acquisition Proposal. Subject to the foregoing provisions of this Section 6.02, the Company shall, and shall cause its directors, officers, employees, agents and representatives to, cease immediately and cause to be terminated all discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, an Alternative Acquisition Proposal. (b) Neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve or cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to any Alternative Acquisition Proposal, Proposal or (iii) approve or recommend, or propose to approve or recommend, any Alternative Acquisition Proposal or (iv) agree or resolve to take actions set forth in clauses (i), (ii) or (iii) of this sentenceProposal. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to the Offer (the "Applicable Period")Offer, the Board receives a Superior Company Proposal and a majority of the Board determines disinterested directors of the Company determine in good faith, after consultation with independent outside counsel, that it is necessary required to do so in order to comply with its their fiduciary obligations, the Board may,may withdraw its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such Superior Company Proposal. (c) The Company promptly, and in any event within 24 hours, shall advise Parent orally and in writing promptly (in no event more than 24 hours after the receipt thereof) of any Alternative Acquisition Proposal or any inquiry with respect to or that could would be reasonably likely to lead to any Alternative Acquisition Proposal, the identity of the person or group making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably fully informed of the status, including any change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable promptly after receipt or delivery thereof with copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection with any Alternative Acquisition Proposal. (d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Board, after consultation with independent outside counsel, failure so to disclose could be inconsistent with its obligations under applicable law, provided, however, that except as set forth in Section 6.02(b), in no event shall the Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition ProposalLaw. (e) For purposes of this Agreement, "Superior Company Proposal" means any bona fide, written proposal not solicited, initiated or encouraged in violation of this Section 6.02 made by a third party to acquire all or substantially all the equity securities or assets of the Company, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through pursuant to a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, recapitalization or a sale of all or a joint venturesubstantially all its assets, (i) that is not subject to a financing contingency, (ii) that is on terms which a majority of the Board determines disinterested directors of the Company determines, after consultation with its outside counsel and an independent financial advisor, in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation, with only customary qualifications, and independent legal counsel) to be represent superior for the holders of Sharesvalue, from a financial point of view, to view for the holders of Shares than the Offer and the Merger, taking into account at the time of such determination all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of this Agreement, the Offer and the Merger) and (iii) that is reasonably likely to be consummated, taking into account all financial, regulatory, legal and other aspects of such proposal (including, without limitation, any antitrust or competition law approvals or non-objections).and

No Solicitation, Etc. Following the date hereof until the date upon which this Agreement is terminated, the Sellers agree, except as otherwise expressly provided in this Article 6: (a) From the date of this Agreement until the earlier of the Effective Time not, directly or the termination of this Agreementindirectly, the Company and its subsidiaries shall not (and the Company will not permit through any of its or any of its subsidiaries' officersofficer, directors or employees or any trustee, director, employee, investment banker, financial advisor, attorney, accountant or other representative retained by it or agent of the Sellers or any Subsidiary of its subsidiaries IPC REIT or otherwise to) directly or indirectly : (i) solicit, encourageinitiate or knowingly encourage or facilitate (including by way of furnishing information or entering into any form of agreement or understanding or providing any other form of assistance) the initiation of any inquiries, engage proposals or offers that constitute or that may reasonably be expected to lead to an actual or potential Acquisition Proposal; (ii) participate in discussions or negotiate with any Person (whether such discussions or negotiations are initiated by the Company regarding or otherwise) furnish any information or take any other action intended or designed access to facilitate any inquiry or effort of any Person with respect to any actual or potential Acquisition Proposal; (other than Parentiii) relating to the possible acquisition of the Company (b) Neither the Board nor any committee thereof shall (i) withdraw withdraw, qualify or modify, or publicly propose to withdraw withdraw, modify or modifyqualify, in a manner adverse to Parent or Purchaser, Buyer the approval or and recommendation to Unitholders by the Board of the Transactions; (iv) approve, recommend or remain neutral with respect to, or propose publicly to approve, recommend or remain neutral with respect to, any such committee of this Agreement, the Offer Acquisition Proposal; or the Merger, (iiv) approve or cause or permit the Company IPC REIT or any of its Subsidiaries to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead related to any Alternative Acquisition ProposalProposal (other than a confidentiality agreement contemplated in section 6.4(a)). For greater certainty, IPC REIT shall not be deemed in breach of this section 6.1(a) solely by virtue of referring any third party who may communicate with IPC REIT or its agent to the provisions of this Agreement; (iiib) approve immediately to cease and cause to be terminated any existing solicitations, encouragements, activities, discussions or recommendnegotiations with any Person (other than Buyer, any of its Affiliates or any of their representatives or agents) with respect to any actual or potential Acquisition Proposal whether or not initiated by any of the Sellers; (c) not to release or permit the release of any Person from or waive or forbear in the enforcement of any confidentiality or standstill agreement to which such Person is a party, except to allow such Person confidentially to propose to approve or recommend, any Alternative the Board an Acquisition Proposal or not procured in contravention of the Sellers’ obligations under subsections (iv) agree or resolve to take actions set forth in clauses (i), (iia) or (iiib) of this sentence. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to the Offer section 6.1 (the "Applicable Period"), the Board receives a Superior Company Proposal and an “Unsolicited Acquisition Proposal”) that the Board determines in good faith, after consultation with independent receipt of advice from its financial advisors and outside legal counsel, that constitutes or is reasonably likely to result in a Superior Proposal; and (d) immediately to cease to provide and cause not to be provided to any other party with access to information concerning IPC REIT and its Subsidiaries (including through access to IPC REIT’s electronic data site) and, to the extent it is necessary entitled to do so in order to comply with its fiduciary obligationsunder the applicable confidentiality agreements, request the Board may, (c) The Company promptly, and in any event within 24 hours, shall advise Parent orally and in writing of any Alternative Acquisition Proposal return or any inquiry with respect to or that could lead to any Alternative Acquisition Proposal, the identity of the person or group making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies destruction of all material correspondence and other written material sent or confidential information provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection that has entered into a confidentiality agreement with IPC REIT relating to any Alternative potential Acquisition Proposal. (d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Board, after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under applicable law, provided, however, that except as set forth in Section 6.02(b), in no event shall the Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition Proposal. (e) For purposes of this Agreement, "Superior Company Proposal" means any proposal made by a third party to acquire all or substantially all the equity securities or assets of the Company, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which the Board determines in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation, with only customary qualifications, and independent legal counsel) to be superior for the holders of Shares, from a financial point of view, to the Offer and the Merger, taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of this Agreement, the Offer and the Merger) and (iii) that is reasonably likely to be consummated, taking into account all financial, regulatory, legal and other aspects of such proposal (including, without limitation, any antitrust or competition law approvals or non-objections).

No Solicitation, Etc. (a) From Each of Seller and the Company covenants and agrees that, during the period from the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement or the Closing Date (a) none of Seller, the Company and its subsidiaries shall not (and the Company will not permit any of its or any of the Company Subsidiaries shall, and each of them shall direct and cause its subsidiaries' officers, directors or employees or any investment bankerdirectors, financial advisoremployees, attorney, accountant or other representative retained by it or any of its subsidiaries to) directly or indirectly (i) solicit, encourage, engage in discussions or negotiate with any Person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate any inquiry or effort of any Person (other than Parent) relating to the possible acquisition of the Company (b) Neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve or cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to any Alternative Acquisition Proposal, (iii) approve or recommend, or propose to approve or recommend, any Alternative Acquisition Proposal or (iv) agree or resolve to take actions set forth in clauses (i), (ii) or (iii) of this sentence. Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares pursuant to the Offer (the "Applicable Period"), the Board receives a Superior Company Proposal agents and the Board determines in good faith, after consultation with independent counsel, that it is necessary to do so in order to comply with its fiduciary obligations, the Board may, (c) The Company promptly, and in any event within 24 hours, shall advise Parent orally and in writing of any Alternative Acquisition Proposal or any inquiry with respect to or that could lead to any Alternative Acquisition Proposal, the identity of the person or group making any such Alternative Acquisition Proposal or inquiry and the material terms of any such Alternative Acquisition Proposal or inquiry. The Company shall (i) keep Parent reasonably informed of the status, including any change to the details, of any such Alternative Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all material correspondence and other written material sent or provided to the Company from any third party in connection with any Alternative Acquisition Proposal or sent or provided by the Company to any third party in connection with any Alternative Acquisition Proposal. (d) Nothing contained in this Section 6.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if, in the good faith judgment of the Board, after consultation with independent counsel, failure so to disclose could be inconsistent with its obligations under applicable law, provided, however, that except as set forth in Section 6.02(b), in no event shall the Board or any committee thereof withdraw or modify, or propose to withdraw or modify its position with respect to this Agreement, the Offer or the Merger or adopt, approve or recommend, or propose to adopt, approve or recommend any Alternative Acquisition Proposal. (e) For purposes of this Agreement, "Superior Company Proposal" means any proposal made by a third party to acquire all or substantially all the equity securities or assets of the Company, or other transaction for the acquisition of all or substantially all the equity securities or assets of the Company through a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization, a sale or a joint venture, (i) that is not subject to a financing contingency, (ii) that is on terms which the Board determines in its good faith judgment (after consultation with a financial adviser of nationally recognized reputation, with only customary qualifications, and independent legal counsel) to be superior for the holders of Shares, from a financial point of view, to the Offer and the Merger, taking into account all the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of this Agreement, the Offer and the Merger) and (iii) that is reasonably likely to be consummated, taking into account all financial, regulatory, legal and other aspects of such proposal representatives (including, without limitation, any antitrust investment banker, attorney or competition law approvals accountant retained by Seller, the Company or non-objections)any of the Company Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, amalgamation, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (including, but not limited to, a public offering) of, the Company or any of the Company Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (b) each of Seller and the Company will, and will cause each of the Company Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and each of Seller and the Company will, and will cause each of the Company Subsidiaries to, take the necessary steps to inform such parties of the obligations undertaken in this Section 4.2; and (c) each of Seller and the Company will, and will cause each of the Company Subsidiaries to, notify Wendy's immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, Seller, the Company or any of the Company Subsidiaries.