Common use of No Solicitation Provisions Clause in Contracts

No Solicitation Provisions. The Merger Agreement provides that until the Acceptance Date, or if earlier, the termination date of the Merger Agreement, the Company shall not, and shall not authorize or permit any of its subsidiaries or any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (collectively, “Representatives”), directly or indirectly, to solicit, initiate, or knowingly or intentionally encourage or facilitate, any inquiries, offers or proposals that constitute, or would reasonably be expected to lead to, any Acquisition Proposal, including amending or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of the Merger Agreement that the Company’s board of directors determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal and that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, the Merger Agreement, and subject to compliance therewith, (x) furnish non-public information with respect to the Company and its subsidiaries to the person making such Acquisition Proposal and its Representatives and (y) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement).

No Solicitation Provisions. The Merger Agreement provides that until the Acceptance DateEncysive and its subsidiaries, or if earlieras well as their respective officers, the termination date of the Merger Agreementdirectors, the Company shall notagents and representatives, and shall not authorize or permit any of its subsidiaries or any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (collectively, “Representatives”), directly or indirectly, to (i) solicit, initiate, or knowingly take any action to facilitate or intentionally encourage or facilitate(including by way of furnishing non-public information) the submission of, any inquiriesTakeover Proposal, offers (ii) approve or proposals recommend any Takeover Proposal, enter into any agreement, agreement-in- principle or letter of intent with respect to any Takeover Proposal (or resolve to or publicly propose to do any of the foregoing), or (iii) participate or engage in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any action to facilitate any inquiries or the making of any proposal that constituteconstitutes, or would reasonably be expected to lead to, to any Acquisition Proposal, including amending or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Takeover Proposal. However, the Merger Agreement also provides that, prior that Encysive may refer any third party to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties Section 6.8 of the Company’s board of directors under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, Merger Agreement and if in response to an unsolicited, bona fide written Acquisition Takeover Proposal made or received after the 19 Table of Contents date of the Merger Agreement that Agreement, the Company’s board of directors Encysive Board reasonably determines in good faith (after consultation with outside counsel and receiving advice from its financial advisor, if any, ) that such Takeover Proposal constitutes or is reasonably likely to lead to to, a Superior Proposal and with respect to which the Encysive Board determines in good faith, after consultation with and receiving advice from outside counsel, that did not result from a breach by the Company of, or actions by taking of such action is necessary in order for the Encysive Board to comply with its Representatives inconsistent with, the Merger Agreement, and subject fiduciary duties to compliance therewithits stockholders under Delaware law, (xi) furnish non-public information with respect to the Company Encysive and its subsidiaries to the person making such Acquisition Takeover Proposal (and its Representatives representatives) that makes such Takeover Proposal but only pursuant to a confidentiality agreement in customary form that is no less favorable to Encysive than the confidentiality agreement with Pfizer (except that such confidentiality agreement shall contain additional provisions that expressly permit Encysive to comply with certain provisions of the Merger Agreement), provided that (A) it may not include any provision calling for an exclusive right to negotiate with Encysive, (2) Encysive provides Pfizer with not less than 24 hours notice of its intention to enter into such confidentiality agreement and (y3) participate in Encysive advises Pfizer 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 Encysive delivers to Pfizer all such information not previously provided to Pfizer, (ii) conduct discussions or negotiations with such person and its Representatives regarding such Acquisition Takeover Proposal and (iii) to the extent permitted under the terms of the Merger Agreement, enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal. The Merger Agreement contains a provision that Encysive shall provide Pfizer with oral and written notice, in no event later than 24 hours after receipt, if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Encysive with respect of any Takeover Proposal, ifthat indicates the identity of the person making such proposal, offer, inquiry or other contact and the terms and conditions thereof (and shall include with such notice copies of any written materials received from or on behalf of such person relating thereto), and thereafter shall keep Pfizer reasonably informed of all material developments affecting the status and terms of such proposals, offers, inquiries or requests (and Encysive shall provide Pfizer with copies of any additional written materials received therewith) and of the status of such discussions or negotiations. The Merger Agreement further contains a provision that the Encysive Board may comply with Rule 14d-9 or 14e-2(a) of the Exchange Act or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Takeover Proposal if in their good faith judgment (after consultation with outside legal counsel), if the taking of such position or the making of such disclosure is necessary for the Encysive Board to comply with its fiduciary duties under Delaware law. However, the Encysive Board shall not make an Company Adverse Recommendation Change (as described above) unless they determine in their good faith judgment, after consultation with and advice from outside legal counsel, that such withdrawal, modification, recommendation or agreement is necessary to comply with its fiduciary duties to its stockholders under Delaware law. As used in the case Merger Agreement, a “Takeover Proposal” means any inquiry, proposal or offer from any person (other than Pfizer, Purchaser or any of either clause (xtheir affiliates) or (y), prior to taking such action the Company enters into an Acceptable Confidentiality Agreement “group” (as defined in Section 13(d) of the Exchange Act) relating to (A) the direct or indirect acquisition (whether in a single transaction or a series of related transactions) of assets of Encysive and Encysive’s subsidiaries (including securities of Encysive’s subsidiaries) equal to 20% or more of the Encysive’s consolidated assets or to which 20% or more of the Encysive’s revenues or earnings on a consolidated basis are attributable, (B) the direct or indirect acquisition (whether in a single transaction or a series of related transactions) of 20% or more of any class of equity securities of the Encysive, (C) a tender offer or exchange offer that if consummated would result in any person or “group” (as defined in Section 13(d) of the Exchange Act) beneficially owning 15% or more of any class of equity securities of the Encysive or (D) a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Encysive or any of Encysive’s subsidiaries, in each case, other than the transactions contemplated by the Offer, the Merger and the other transactions contemplated by the Merger Agreement. As used in the Merger Agreement, a “Superior Proposal” means any bona fide written offer obtained after the date of the Merger Agreement and not in breach of the Merger Agreement to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the outstanding voting equity 20 Table of Contents securities of the Encysive or all or substantially all of the assets of the Encysive and the Encysive’s subsidiaries on a consolidated basis, and is on terms that the Encysive Board determines in its good faith judgment (after receipt of the advice of its financial advisor of nationally recognized reputation and outside counsel), taking into account all relevant factors, (A) would, if consummated, result in a transaction that is more favorable to the holders of Encysive common stock from a financial point of view than the transactions contemplated by the Offer, the Merger and the other transactions contemplated by the Merger Agreement (including the terms of any proposal by Pfizer to modify the terms of such transactions) and (B) is reasonably capable of being completed on the terms proposed.

No Solicitation Provisions. The HP Merger Agreement provides that at all times during the period commencing with the execution and delivery of the HP Merger Agreement and continuing until the Acceptance Dateearlier to occur of the termination of the HP Merger Agreement and the Effective Time, 3PAR and its subsidiaries would not, nor would they authorize or knowingly permit any of their respective directors, officers or other employees, controlled affiliates, or if earlierany investment banker, attorney or other agent or representative (collectively, "Representatives") to, directly or indirectly, (i) solicit, initiate or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal (as defined below), (ii) furnish to any person or entity (other than HP, Purchaser or any designees of HP or Purchaser) any non-public information relating to 3PAR or any of its subsidiaries, or afford to any person or entity (other than HP, Purchaser or any designees of HP or Purchaser) access to the business, properties, assets, books, records or other information, or to any personnel, of 3PAR or any of its subsidiaries, in any such case that would reasonably be expected to induce the making, submission or announcement of, or encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any person or entity with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) enter into any letter of intent, memorandum of understanding or other contract contemplating or otherwise relating to an Acquisition Transaction or (vi) resolve or agree to do any of the foregoing. However, the termination date HP Merger Agreement also provides that, prior to the Appointment Time, the 3PAR board of directors would be permitted to, directly or indirectly through 3PAR's Representatives, (i) participate or engage in discussions or negotiations with any person or entity that has made a bona fide, written and unsolicited Acquisition Proposal that the 3PAR Board of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) and/or (ii) furnish to any person or entity that has made a bona fide, written and unsolicited Acquisition Proposal that the 3PAR Board of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal any non-public information relating to 3PAR and access to the business, properties, assets, books, records or other non-public information, or to any personnel, of 3PAR or any of its subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement, the terms of which are no less favorable to 3PAR than those contained in the confidentiality agreement with HP (such confidentiality agreement need not contain a "standstill" or other similar provision that prohibits such third party from making any proposal to acquire 3PAR, acquire securities of 3PAR, nominate for election members of the Merger Agreement3PAR Board of Directors or take any other action), provided that in the Company shall notcase of any action taken pursuant to the preceding clauses (i) or (ii), (A) the 3PAR board of directors determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to be a breach of its fiduciary duties to its stockholders under applicable Delaware law, (B) 3PAR gives HP not less than 24 hours prior written notice of the identity of such person or entity and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case 3PAR will give HP a copy thereof) and of the 3PAR's intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such person or entity and (C) contemporaneously with furnishing any non-public information to such person or entity, 3PAR furnishes such non-public information to HP to the extent such information has not been previously furnished by 3PAR to HP. 3PAR will provide HP with a correct and complete copy of any confidentiality agreement entered into within 24 hours of the execution thereof. 3PAR will not terminate, waive, amend, release or modify any material provision of any confidentiality agreement to which it or any of its subsidiaries is a party with respect to any Acquisition Proposal, and shall not authorize will enforce the material provisions of any such agreement and will provide HP with copies of any additional written documentation delivered to 3PAR or permit any of its subsidiaries or its or its subsidiaries' Representatives in connection therewith. The HP Merger Agreement also would require 3PAR to promptly (and in any event within 24 hours following receipt) notify HP orally and in writing if 3PAR or any of its subsidiaries or any of its or their directorsits subsidiaries' Representatives receives (i) any Acquisition Proposal, officers, employees, investment bankers, attorneys, accountants (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal or other advisors or representatives (collectively, “Representatives”), directly or indirectly, to solicit, initiateiii) any inquiry with respect to, or knowingly or intentionally encourage or facilitate, any inquiries, offers or proposals that constitute, or which would reasonably be expected to lead to, any Acquisition Proposal, such notice to include the terms and conditions of such Acquisition Proposal, request or inquiry (including amending a copy, if made in writing, or granting a written summary, if made orally), and the identity of the person or entity or group making any waiver such Acquisition Proposal, request or release under inquiry. The HP Merger Agreement would require 3PAR to keep HP informed on a current basis of the status and terms of any standstill such Acquisition Proposal, request or similar agreementinquiry, except and any material developments related thereto. The HP Merger Agreement further contains a provision that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing to the Company’s 3PAR board of directors would be permitted to (i) take and disclose to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act and (ii) make any Acquisition Proposal disclosure to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of the Merger Agreement 3PAR stockholders that the Company’s 3PAR board of directors determines in good faith (after consultation with its outside counsel and its financial advisor, if any, is legal counsel) that the failure to make such disclosure would reasonably likely be expected to lead to a Superior Proposal and that did not result from be a breach of its fiduciary duties to its stockholders under applicable Delaware law, provided that, in either such case, any such statement(s) or disclosures made by the Company of, or actions by its Representatives inconsistent with, 3PAR board of directors will be subject to the terms and conditions of the HP Merger Agreement, and subject including the termination provisions. As used in the HP Merger Agreement, an "Acquisition Proposal" means any inquiry, offer or proposal (other than an inquiry, offer or proposal by HP or Purchaser) to compliance therewithengage in an Acquisition Transaction. As used in the HP Merger Agreement, an "Acquisition Transaction" means any transaction or series of related transactions (xother than the transactions contemplated by the HP Merger Agreement) furnish non-public information involving: (i) the purchase or other acquisition from 3PAR by any person or entity or "group" (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of more than 20% of the Shares outstanding as of the consummation of such purchase or other acquisition, or any tender offer or exchange offer by any person or entity or "group" (as defined in or under Section 13(d) of the Exchange Act) that, if consummated in accordance with respect its terms, would result in such person or entity or "group" beneficially owning more than 20% of the Shares outstanding as of the consummation of such tender or exchange offer; (ii) a merger, consolidation, business combination or other similar transaction involving 3PAR pursuant to which the Company stockholders of 3PAR immediately preceding such transaction hold less than 80% of the voting equity interests in the surviving or resulting entity of such transaction; (iii) a sale, transfer, acquisition or disposition of more than 20% of the consolidated assets of 3PAR and its subsidiaries to taken as a whole (measured by the person making fair market value thereof) or (iv) a liquidation, dissolution or other winding up of 3PAR and its subsidiaries, taken as a whole. As used in the HP Merger Agreement, a "Superior Proposal" means any bona fide written Acquisition Proposal, not obtained in breach of the applicable provisions of the HP Merger Agreement, for an Acquisition Transaction on terms that the 3PAR board of directors have determined in good faith (after consultation with its financial advisor and outside legal counsel), taking into account all relevant legal, financial and regulatory aspects of such Acquisition Proposal and its Representatives the timing and (y) participate in discussions or negotiations with such person and its Representatives regarding likelihood of consummation of such Acquisition Transaction, would be more favorable to 3PAR stockholders (in their capacity as such) than the Offer and the Merger. For purposes of the reference to an "Acquisition Proposal, if, " in this definition of a "Superior Proposal," all references to "more than 20%" in the case definition of either clause (x) or (y), prior "Acquisition Transaction" will be deemed to taking such action be references to "more than 85%," and the Company enters into an Acceptable Confidentiality Agreement (as defined reference to "80%" in the Merger Agreement)definition of "Acquisition Transaction" will be deemed to be a reference to "15%."

No Solicitation Provisions. The Merger Agreement provides that until during the Acceptance Date, or if earlier, period beginning on the termination date of the Merger AgreementAgreement and continuing until 11:59 p.m. (New York time) on the date that is 45 days after the public announcement of the transaction (the “Solicitation Period End Date”), GenTek may (i) solicit, initiate or encourage any Acquisition Proposal (as defined below) or any inquiries, proposals or offers that may lead to an Acquisition Proposal and (ii), subject to compliance with certain restrictions, participate in discussions or negotiations regarding, furnish to any person information with respect to, and take any other action to facilitate any inquiries or the Company shall notmaking of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal. During this period, prior to providing material non-public information to any third party, XxxXxx must execute a confidentiality agreement with provisions no more favorable to such person than those confidentiality provision contained in the confidentiality agreement with Parent. GenTek also must promptly provide to Parent any material non-public information concerning GenTek or its subsidiaries that was not previously provided to Parent. The Merger Agreement provides that, as of the Solicitation Period End Date, GenTek shall, and shall not authorize or permit any of cause its subsidiaries or any of its or and shall direct their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants or accountants, agents and other advisors or representatives (collectively, “Representatives”)) to (i) immediately cease any solicitation, encouragement, 20 Table of Contents discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any person in respect of an Acquisition Proposal and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its affiliates or representatives is a party with respect to any Acquisition Proposal and shall enforce the provisions of any such agreement. The Merger Agreement also provides that during the period beginning on the Solicitation Period End Date and continuing until the Effective Time or, if earlier, the termination of the Merger Agreement, GenTek shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any Representative to, directly or indirectly, to (i) solicit, initiateinitiate or knowingly facilitate or knowingly encourage (including by way of furnishing information), or knowingly take any other action designed or intentionally encourage reasonably likely to facilitate or facilitateencourage, any inquiries, offers or proposals that constituteinquiry with respect to, or would the making, submission or announcement of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, including amending or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise (ii) participate in any discussions or negotiations regarding(including by way of furnishing information) regarding an Acquisition Proposal, or furnish any non-public information or access to its properties, books, records or personnel to, any person that has made or, to the Company’s knowledge, is considering making an Acquisition Proposal, (iii) make a Change of Recommendation (as defined below), (iv) enter into any letter of intent or agreement in principle or any agreement providing for any Acquisition Proposal (except for confidentiality agreements otherwise permitted by the Merger Agreement) or (v) resolve, propose or agree to any of the foregoing. The Merger Agreement provides that any time from the Solicitation Period End Date and continuing until the earlier of the Acceptance Date and the termination of the Merger Agreement, subject to GenTek’s compliance with the non-solicitation provisions, if GenTek receives an unsolicited bona fide written Acquisition Proposal (i) which (a) constitutes a Superior Proposal (as defined below) or (b) which GenTek’s Board determines in good faith could reasonably be expected to result in a Superior Proposal and (ii) GenTek’s Board determines in good faith, after consultation with GenTek’s legal counsel that the failure of GenTek’s Board to take the actions set forth in clauses (x) and (y) below with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any such Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action Proposal would be inconsistent with the directors’ exercise of their fiduciary duties of the Companyobligations to GenTek’s board of directors stockholders under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of the Merger Agreement that the Company’s board of directors determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal and that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, the Merger Agreement, and subject to compliance therewith, then GenTek may: (x) furnish non-public information with respect to the Company and its subsidiaries to the person third party making such Acquisition Proposal (if, and its Representatives only if, prior to furnishing such information, GenTek receives from the third party an executed confidentiality agreement with confidentiality provisions no more favorable to such person than those confidentiality provisions contained in the confidentiality agreement between GenTek and Parent) and (y) participate engage in discussions or negotiations with such person and its Representatives regarding third party with respect to such Acquisition Proposal. GenTek shall promptly, ifand in any event within 24 hours, in the case of either clause notify Parent if GenTek, its subsidiaries or its or their Representatives receives (xi) any Acquisition Proposal or (y)ii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. GenTek shall notify Parent promptly and in any event within 24 hours, prior to taking of the identity of such action Person and provide a written copy of such Company Acquisition Proposal, inquiry or request and keep Parent reasonably informed on a current basis (and in any event within 24 hours) after the Company enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement)occurrence of any changes or developments of any Acquisition Proposal, inquiry or request.

No Solicitation Provisions. The Merger Agreement provides that until the Acceptance Date, or if earlier, the termination date contains provisions prohibiting each of the Merger AgreementCompany and its subsidiaries, the Company shall not, and shall not authorize or permit any of its subsidiaries or any of its or as well as their respective directors, officers, employees, investment bankersaccountants, attorneysconsultants, accountants or legal counsel, advisors, agents and other advisors or representatives (collectivelyrepresentatives, “Representatives”), from directly or indirectly: • soliciting, initiating, seeking or knowingly encouraging or facilitating any Acquisition Proposal or taking any action to solicit, initiate, seek or knowingly or intentionally encourage or facilitatefacilitate any inquiry, expression of interest, proposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal; • entering into, participating or engaging in, maintaining or continuing any discussions or negotiations relating to, any inquiriesAcquisition Proposal with any Person other than Parent or the Purchaser; • furnishing to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Acquisition Proposal; Table of Contents • approving, offers endorsing, recommending, executing or proposals entering into any agreement, letter of intent or contract with respect to an Acquisition Proposal or otherwise relating to or that constitute, is intended to or would reasonably be expected to lead to, to any Acquisition ProposalProposal (other than an Acceptable Confidentiality Agreement as defined in the Merger Agreement) or entering into any agreement, including amending arrangement, or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Merger Agreement; • submitting any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company; • waiving, terminating, modifying, failing to enforce or releasing any person other than Parent or the Purchaser from any provision of or granting any permission, waiver or release request under any standstill “standstill,” confidentiality or similar agreementagreement or obligation; or • proposing, except resolving or agreeing to do any of the foregoing. The Merger Agreement provides that the Company may waive is required to, and is required to cause its subsidiaries and instruct its representatives to, immediately cease and cause to be terminated any prohibition contained in and all existing activities discussions or negotiations with any such standstill person conducted on or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing Agreement with respect to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable lawsand, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable law, promptly as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received practicable after the date of the Merger Agreement, request the prompt return or destruction of all confidential information previously furnished to such person within the last 12 months for the purpose of evaluating a possible Acquisition Proposal. Notwithstanding anything in the Merger Agreement to the contrary, at any time prior to the Purchaser accepting for payment, and paying for, all Shares validly tendered prior to the Expiration Date (the “Acceptance Time”), the Company may, and may permit and authorize its subsidiaries and its and its subsidiaries’ representatives to, in response to a bona fide written unsolicited Acquisition Proposal that the Company’s board of directors Company Board reasonably determines in good faith, after consultation with an independent financial advisor and outside counsel, constitutes or could reasonably be expected to result in a Superior Proposal (as defined in this Section 11 below), and after consultation with its outside legal counsel, the Company Board reasonably determines in good faith after consultation that the failure to take such actions would reasonably be expected to breach its fiduciary duties to the stockholders of the Company under Delaware law, then the Company may take the following actions: (A) furnish information with outside counsel respect to the Company and any of its financial advisor, if any, is reasonably likely subsidiaries to lead to a Superior the person making such Acquisition Proposal and that (B) participate in discussions or negotiations with the person making such Acquisition Proposal regarding such Acquisition Proposal, and which Acquisition Proposal did not otherwise result from a breach by of the Company of, or actions by its Representatives inconsistent with, no solicitation provisions of the Merger Agreement, and subject to compliance therewith, (x1) furnish non-public information with respect to the Company and its subsidiaries to the person making such Acquisition Proposal (and its Representatives advisors and representatives) pursuant to a confidentiality agreement that is not materially less restrictive than the confidentiality agreement and the standstill agreement between Parent and the Company and so long as all such information had been provided, or is concurrently provided, to Parent and (y2) participate in discussions or negotiations with the person making such person Acquisition Proposal (and its Representatives advisors and representatives) regarding such Acquisition Proposal. The Merger Agreement also provides that the Company will, ifpromptly and in any event within 24 hours of learning or receiving the relevant information, in the case provide Parent with: • a reasonably detailed written description of either clause any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal (xincluding any modification thereto) or any request for information that could reasonably be expected to lead to an Acquisition Proposal, including the identity of the person from which such inquiry, expression of interest, proposal, offer or request for information was received; and • a complete, unredacted copy of each proposed or final written agreement or written document (y), prior including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication relating to taking such action the Company enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement)Acquisition Proposal.

No Solicitation Provisions. The Merger Agreement provides that until the Acceptance Date, or if earlier, the termination date of the Merger Agreement, the Company shall, and shall notcause its subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its subsidiaries or any of its or their directors, officers, employees, advisors and investment bankers, attorneys, accountants or other advisors or representatives bankers (collectively, “the "Representatives”), directly or indirectly, ") to solicit, initiate, or knowingly or intentionally encourage or facilitatecontinue, any inquiriesand all existing activities, offers discussions or proposals that constitutenegotiations, or would reasonably be expected to lead toif any, with any Acquisition Proposal, including amending or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into third party conducted prior to the date of the Merger AgreementAgreement with respect to any Takeover Proposal until such time, if such agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable lawsany, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, is terminated in accordance with its terms. The Merger Agreement further provides that the Company shall not, and shall cause its subsidiaries not to, and shall not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, solicit, initiate, or knowingly encourage the submission of any inquiries, or the making of any proposal or offer, that constitutes a Takeover Proposal or that could reasonably be expected to enter intolead to any Takeover Proposal or (i) conduct, continue engage in, or otherwise participate in any discussions or negotiations regardingregarding a Takeover Proposal or otherwise cooperate with or knowingly assist, furnish facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any person relating to the Company or any of its subsidiaries, or afford to any person access to the business, properties, assets, books or records or personnel of the Company or any of its subsidiaries, (ii) approve or recommend, or publicly propose to approve or recommend, any Takeover Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating to the Company or any of its subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or assist request, including any material amendments or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposalproposed amendments as to price and other material terms thereof. The Company shallshall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and shall cause each its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of its subsidiaries and the Representatives assets of the Company and or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to immediately cease any discussions twenty percent (20%) or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties more of the Company’s board 's consolidated assets or to which twenty percent (20%) or more of directors under applicable law, as determined in good faith by the Company’s board 's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of directors after consultation with outside counseltwenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in response any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to an unsolicitedwhich such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Acquisition Takeover Proposal made not resulting from any violation or received after the date breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company’s 's board of directors determines in good faith (after consultation with outside legal counsel and its the Company's financial advisor, if any, ) is reasonably likely to lead to a Superior Proposal and that did not result more favorable from a breach financial point of view to the holders of Company's stockholders than the transactions contemplated by the Company of, or actions by its Representatives inconsistent with, the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and subject prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance therewithwith Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (xi) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information with respect relating to the Company and or any of its subsidiaries pursuant to the person making such Acquisition Proposal and its Representatives and (y) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.

No Solicitation Provisions. The Except as expressly permitted by the non-solicitation provisions in the Merger Agreement provides and except as may relate to any Excluded Party (as defined below) only for so long as they are Excluded Parties, O’Charley’s and its subsidiaries and their respective officers and directors shall, and O’Charley’s shall cause its and its subsidiaries’ other Representatives to: • at 12:00 a.m. (New York City time) on March 7, 2012 (the “No-Shop Period Start Date”) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party and its Representatives, its affiliates and its prospective equity and debt financing sources), discussions or negotiations (or any other actions described under the heading “Go Shop Provisions” above) with any parties that may be ongoing with respect to any inquiry, proposal or Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such party to the effect that O’Charley’s is ending all discussions and negotiations with that party with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall also request that party to return or destroy promptly all confidential information concerning O’Charley’s and its subsidiaries, and • from the No-Shop Period Start Date until the Acceptance Date, earlier of the Effective Time or if earlier, the termination date of the Merger Agreement, not directly or indirectly: • initiate, solicit, knowingly facilitate or knowingly encourage (publicly or otherwise) (including by way of providing access to non-public information or the Company shall notbusiness, and shall not authorize properties, assets or permit personnel of O’Charley’s or any of its subsidiaries or to any party and its Representatives, its affiliates and its Table of its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (collectively, “Representatives”), directly or indirectly, to solicit, initiateContents prospective equity and debt financing sources) any inquiries regarding, or knowingly the making, submission or intentionally encourage announcement of any proposal or facilitate, any inquiries, offers or proposals offer that constituteconstitutes, or would reasonably be expected to lead to, any an Acquisition Proposal, including amending ; • engage or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement, if such agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regardingwith respect to, furnish or provide any non-public information or data concerning O’Charley’s or its subsidiaries or the business, properties, assets or personnel of O’Charley’s or any of its subsidiaries to any party relating to, or that would reasonably be expected to lead to, any Acquisition Proposal or otherwise cooperate with respect to or assist or participate in any effort or attempt by any person with respect toin, or otherwise knowingly or intentionally cooperate in any way withfacilitate such inquiries, any Acquisition Proposal. The Company shallproposals, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with negotiations; • xxxxx to any party (any waiver, amendment or release under any standstill or confidentiality agreement or any takeover statute, other than Intersil and its affiliates) (if the Company’s Board of Directors determines that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties of the Company’s board of directors under applicable law) a limited waiver, as determined in good faith by amendment or release under any standstill agreement for the Company’s board sole purpose of directors after consultation with outside counsel, in response allowing any party or parties to make an unsolicited, bona fide written Acquisition Proposal made or received after the date of the Merger Agreement an offer that the Company’s board of directors determines in good faith after consultation with outside counsel and its financial advisor, if any, is would reasonably likely be expected to lead to an Acquisition Proposal; or • otherwise knowingly facilitate any such inquiries, proposals, discussion or negotiations or any effort or attempt by any party to make an Acquisition Proposal. Not later than 24 hours after the expiration of the Go-Shop Period, O’Charley’s shall certify to Parent and the Purchaser the number and identity of any Excluded Parties and, subject to the ability of O’Charley’s to make a Superior Proposal Recommendation Withdrawal pursuant to and that did not result from a breach by in accordance with the Company of, or actions by its Representatives inconsistent with, non-solicitation provisions under the Merger Agreement, the Company’s Board of Directors shall publicly and subject to compliance therewith, (x) furnish non-public information with respect to expressly reaffirm the Company and its subsidiaries to the person making such Acquisition Proposal and its Representatives and (y) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement)Board Recommendation.

No Solicitation Provisions. The Merger Agreement provides that during the period beginning on the date of the Merger Agreement and continuing until 11:59 p.m., Pacific Time, on November 7, 2009 (the “Go-Shop Termination Date”), MGF may (i) initiate, solicit or encourage the submission of Acquisition Proposals (as defined below) from one or more persons, and (ii) participate in discussions or negotiations regarding, and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal. During this period, prior to providing material non-public information, MGF must execute a confidentiality agreement with each such person. MGF also must promptly provide to Parent any material non-public information concerning MGF or its subsidiaries that is provided to any such person which was not previously provided to Parent. The Merger Agreement also provides that, from the Go-Shop Termination Date until the Acceptance Date, earlier of the Effective Time or if earlier, the termination date of the Merger Agreement, the Company MGF shall not, and shall not authorize or permit any of cause its subsidiaries or any of its or and shall direct their respective directors, officers, employees, investment bankers, agents or advisors (including attorneys, accountants or other advisors or representatives accountants, consultants, bankers and financial advisors) (collectively, “MGF Representatives”) not to (i) initiate, solicit or knowingly take any action to facilitate or encourage (including by way of providing information) the submission of any inquiries, proposals or offers or any other efforts or attempts that constitute, or may reasonably be expected to lead to, an Acquisition Proposal, or engage in any discussions or negotiations with respect thereto, (ii) approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, (iii) withdraw (or change, amend, modify or qualify in a manner adverse to Parent or Purchaser), or propose publicly to withdraw (or change, amend, modify or qualify, in a manner adverse to Parent or Purchaser), or otherwise make any statement or proposal inconsistent with, the MGF Board Recommendation (as defined below) (any action or failure to act set forth in the foregoing clauses (ii) or (iii), a “Change of Board Recommendation”), directly or indirectly(iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar contract relating to solicit, initiate, an Acquisition Proposal or knowingly enter into any contract or intentionally encourage or facilitate, any inquiries, offers or proposals agreement in principle that constitute, is intended or would reasonably be expected to lead to an Acquisition Proposal or that would reasonably be expected to cause MGF to abandon, terminate or breach its obligations under the Merger Agreement or fail to consummate the transactions contemplated the Merger Agreement. However, following the Go-Shop Termination Date, MGF and the MGF Representatives may continue discussions and negotiations with, and provide information to, any Acquisition Proposal, including amending person (i) with whom MGF was having ongoing discussions or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into negotiations with prior to the date of Go-Shop termination Date regarding a possible Acquisition Proposal and (ii) that has been identified in writing to Parent (a “Go-Shop Party”), if the MGF Board determines in good faith that such person could reasonably be expected to make an Acquisition Proposal that after further discussions or negotiations could reasonably result in a Superior Proposal (as defined below). Pursuant to the Merger Agreement, if such agreement prohibits at anytime following the Go-Shop Termination Date and prior to obtaining MGF stockholder approval of the Merger, (i) MGF receives a party from proposing or disclosing to the Company’s board of directors any bona fide written Acquisition Proposal Table of Contents from any third party that is not a Go-Shop Party, and (ii) the MGF Board determines in good faith that (A) such Acquisition Proposal constitutes a Superior Proposal, and (B) the MGF Board determines in good faith, after consultation with its financial advisors and outside counsel, that the failure of the MGF Board to take the extent failure actions set forth in clauses (x) and (y) below with respect to make such a waiver Acquisition Proposal would be inconsistent with the directors’ exercise of their fiduciary duties of the Companyobligations to MGF’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement to the Acceptance Date, the Company shall not and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company may, to the extent the failure to take such action would be inconsistent with the fiduciary duties of the Company’s board of directors stockholders under applicable law, as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date of the Merger Agreement that the Company’s board of directors determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal and that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, the Merger Agreement, and subject to compliance therewith, then MGF may (x) furnish non-public information with respect to the Company and its subsidiaries to the person such third party making such Acquisition Proposal (provided, that, prior to furnishing such information, (1) MGF shall have received from the third party an executed confidentiality agreement and its Representatives (2) all such non-public information shall previously have been provided to Parent and Purchaser or is provided to Parent and Purchaser prior to or substantially contemporaneously with the time that it is provided to the third party making the Acquisition Proposal) and (y) engage or participate in discussions or negotiations with such person and its Representatives regarding third party with respect to such Acquisition Proposal. MGF shall promptly, ifand in any event within 48 hours, in notify Parent of the case receipt of either clause (x1) any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal and the material terms of such proposal and (y)2) any request for non-public information relating to MGF or its subsidiaries or access to MGF’s properties, prior to taking books or records. MGF must disclose the name of the person or entity making such action Acquisition Proposal and provide Parent with copies of any documents or correspondence evidencing such proposal or inquiry. MGF must keep Parent reasonably informed on a current basis of the Company enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement)status and any material developments concerning such Acquisition Proposal.

No Solicitation Provisions. The Merger Agreement provides that ArcSight will, and will cause its subsidiaries and the respective Representatives (as defined below) to, immediately cease any and all existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal (as defined below). The Merger Agreement further provides that at all times during the period commencing with the execution and delivery of the Merger Agreement and continuing until the Acceptance Dateearlier to occur of the termination of the Merger Agreement and the Appointment Time, ArcSight and its subsidiaries will not, nor will they authorize or knowingly permit any of their respective directors, officers or other employees, controlled affiliates, or if earlierany investment banker, attorney or other advisor or representative retained by any of them (collectively, "Representatives") to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) furnish to any person (other than HP, Purchaser or any of their designees) any non-public information relating to ArcSight or any of its subsidiaries, or afford access to the business, properties, assets, books or records of ArcSight or any of its subsidiaries to any person (other than HP, Purchaser or any of their designees), or take any other action with the intention to induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any person with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) enter into any letter of intent, memorandum of understanding or contract contemplating or otherwise relating to an Acquisition Transaction other than a confidentiality agreement permitted by clause (B) in the next paragraph or (vi) terminate, amend or waive any rights under any "standstill" or other similar agreement between ArcSight or any of its subsidiaries and any person (other than HP). However, prior to the Appointment Time, the termination date ArcSight's board of directors may, directly or indirectly through its Representatives, subject to ArcSight's compliance with the provisions of Section 7.1 of the Merger Agreement, (A) engage or participate in discussions or negotiations with any person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the Company shall notArcSight board of directors concludes in good faith (after consultation with a financial advisor of nationally recognized standing and ArcSight's outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) and/or (B) furnish to any person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing any information relating to ArcSight or any of its subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable to ArcSight than those contained in the Confidentiality Agreement (as defined below), and shall not authorize provided that in the case of any action taken pursuant to the foregoing clauses (A) or permit (B), (1) none of ArcSight, any of its subsidiaries or any Representative of ArcSight or its subsidiaries shall have breached the terms of Section 7.1 of the Merger Agreement (other than breaches that are unintentional and not material in effect), (2) the ArcSight board of directors determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties to ArcSight stockholders under the DGCL, (3) at least one business day prior to engaging or their directorsparticipating in any such discussions or negotiations with, or furnishing any information to, such person, ArcSight gives HP written notice of the identity of such person and a copy of such Acquisition Proposal and of ArcSight's intention to engage or participate in discussions or negotiations with, or furnish information to, such person and (4) contemporaneously with furnishing any non-public information to such person, ArcSight furnishes such non-public information to HP (to the extent such information has not been previously furnished by ArcSight to HP). The Merger Agreement further provides that any violation of the restrictions set forth in the preceding paragraphs by any Representative (other than employees that are not officers of ArcSight or any of its subsidiaries, unless such employees are acting at the direction of ArcSight or with the actual knowledge of certain ArcSight officers) will be deemed to be a breach of the foregoing provisions by ArcSight. The Merger Agreement further provides that ArcSight will not enter into any letter of intent, employees, investment bankers, attorneys, accountants memorandum of understanding or other advisors similar document or representatives any agreement (collectivelyother than a confidentiality agreement as permitted by clause (B) in the preceding paragraph) contemplating or otherwise relating to an Acquisition Proposal unless and until the Merger Agreement is terminated and ArcSight has paid all amounts due to HP pursuant to the terms of the Merger Agreement, “Representatives”)if any. The Merger Agreement also requires ArcSight to promptly (and in any event within one business day following receipt) advise HP in writing of (i) any Acquisition Proposal, directly (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal or indirectly, to solicit, initiate(iii) any inquiry with respect to, or knowingly or intentionally encourage or facilitate, any inquiries, offers or proposals that constitute, or which would reasonably be expected to lead to, any Acquisition Proposal, such notice to include the terms and conditions of such Acquisition Proposal, request or inquiry (including amending a copy, if made in writing, or granting any waiver a written summary, if made orally), and the identity of the person or release under any standstill entity or similar agreement, except that the Company may waive any prohibition contained in group making any such standstill Acquisition Proposal, request or similar agreement entered into prior inquiry. The Merger Agreement provides that ArcSight will keep HP informed on a reasonably current basis of the status and material details, terms and conditions (including all amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry. In addition to the date foregoing, ArcSight will provide HP with prior written notice of a meeting of the ArcSight board of directors at which the ArcSight board of directors is reasonably expected to consider an Acquisition Proposal, with HP receiving a similar amount of notice of such meeting as is provided to the members of the ArcSight board of directors. As used in the Merger Agreement, an "Acquisition Proposal" means any offer or proposal, or indication of interest in making an offer or proposal (other than an offer, proposal or indication of interest in making an offer or proposal by HP or Purchaser) relating to any Acquisition Transaction. As used in the Merger Agreement, an "Acquisition Transaction" means any transaction or series of related transactions (other than the transactions contemplated by the Merger Agreement) involving: (i) any acquisition or purchase from ArcSight or any of its subsidiaries by any person or "group" (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of more than a fifteen percent (15%) interest in the total outstanding voting securities of ArcSight or any of its subsidiaries, (ii) any tender offer (including self-tender) or exchange offer that if consummated would result in any person or "group" (as defined in or under Section 13(d) of the Exchange Act) beneficially owning fifteen percent (15%) or more of the total outstanding voting securities of ArcSight or any of its subsidiaries (an "Acquisition Transaction Tender Offer"); (iii) any merger, consolidation, recapitalization, business combination or other similar transaction involving ArcSight or any of its subsidiaries, the business(es) of which, individually or in the aggregate, constitute more than 15% of the assets of ArcSight and its subsidiaries, taken as a whole, pursuant to which the stockholders of ArcSight or such agreement prohibits subsidiary immediately preceding such transaction hold less than eighty-five percent (85%) of the voting equity interests in the surviving or resulting entity of such transaction; (iv) any sale, lease, exchange, transfer, license or disposition (other than (1) any lease in the ordinary course of business and (2) any sale, transfer, license or disposition of ArcSight products or inventory in the ordinary course of business) of more than fifteen percent (15%) of the assets of ArcSight and its subsidiaries, taken as a party from proposing whole (measured by the lesser of book or disclosing fair market value thereof); or (v) any combination of the foregoing As used in the Merger Agreement, a "Superior Proposal" means any bona fide written Acquisition Proposal involving the acquisition of at least eighty percent (80%) of the outstanding voting securities of ArcSight with respect to which the Company’s ArcSight board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as shall have determined in good faith by the Company’s board of directors (after consultation with outstide a financial advisor of nationally recognized standing and its outside legal counsel. From , and after taking into account, among other things, (i) the date financial, legal and regulatory aspects of the Merger Agreement to the Acceptance DateAcquisition Transaction proposed in such Acquisition Proposal, including any financing contingencies, the Company shall not timing and shall not authorize or permit its Representatives to enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish any non-public information with respect to or assist or participate in any effort or attempt by any person with respect to, or otherwise knowingly or intentionally cooperate in any way with, any likelihood of consummation of such Acquisition Proposal. The Company shall, and shall cause each of its subsidiaries and the Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any party (other than Intersil and its affiliates) that may be ongoing with respect to an Acquisition Proposal. However, the Merger Agreement also provides that, prior to the Acceptance Date, the Company mayTransaction and, to the extent the failure to take such action would be inconsistent with the fiduciary duties of the Company’s ArcSight board of directors under applicable lawdeems it relevant, as determined in good faith by the Company’s board of directors after consultation with outside counsel, in response to an unsolicited, bona fide written Acquisition Proposal made or received after the date payment of the Merger Agreement that the Company’s board of directors determines in good faith after consultation with outside counsel and its financial advisor, if any, is reasonably likely to lead to a Superior Proposal and that did not result from a breach by the Company of, or actions by its Representatives inconsistent with, the Merger Agreement, and subject to compliance therewith, (x) furnish non-public information with respect to the Company and its subsidiaries to the person making such Acquisition Proposal and its Representatives and (y) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or (y), prior to taking such action the Company enters into an Acceptable Confidentiality Agreement Termination Fee (as defined below), and (ii) any binding (on HP) counter-offer or binding (on HP) offer made by HP pursuant hereto), that the proposed Acquisition Transaction would be more favorable to the holders of Shares (in their capacity as such), from a financial point of view, than the transactions contemplated by this Agreement, including the Offer and the Merger Agreement(or any binding (on HP) counter-offer or binding (on HP) offer made by HP pursuant hereto).