Common use of Acquisition Proposal Clause in Contracts

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Subsidiary of the Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit or initiate the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person in response to an Acquisition Proposal made, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary of the Company to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”"REPRESENTATIVES") toof, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit solicit, initiate or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this Section 5.4 SECTION 6.4 or elsewhere in this Agreement shall prohibit the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this SECTION 6.4; and provided, further, that nothing in this SECTION 6.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Dateexpiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person person in response to an Acquisition Proposal made, submitted, or announced by such Person person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to SECTION 9.1(C), entering into an agreement accepting or providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(aSECTION 6.4(A) or Section 5.4(bSECTION 6.4(B); (32) the Special Committee Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders Shareholders under applicable Law; (43) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, the Company promptly gives Parent written notice of the existence identity of such Acquisition Proposalperson, all of the material terms and conditions of such Acquisition Proposal and the Company’s 's intention to furnish information to, or enter into discussions or negotiations with, such Person, and ; (4) the Company promptly gives Parent receives from such Person an executed confidentiality agreement which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written notice of any amendment in the material terms and conditions of oral information furnished to such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency Person by or on behalf of the Company’s discussions or negotiations with such Person relating , restrictions on trading and hostile take-over activities and other terms no less favorable to such amended Acquisition Proposalthe Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such Person executes a confidentiality agreement with information to such Person, the Company that is customary for furnishes such transactions and (6) the Company promptly furnishes information to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4SECTION 6.4(A), the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the Company may reasonably believes would be expected to lead to an to, a Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4SECTION 6.4.

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Subsidiary of the Company to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney attorney, accountant or other advisor, agent advisor or representative of the Company or any Subsidiary of of, the Company (collectively, the “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, permit any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit indirectly, (a) solicit, initiate or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to of any Acquisition Proposal or (iiib) participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or agree to or endorse, or take any other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; . Immediately after the execution and delivery of this Agreement, the Company will cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal provided, howeverthat notwithstanding anything to the contrary contained in this Agreement, that nothing contained in this Section 5.4 or elsewhere in this Agreement any other provision hereof shall prohibit the Company, before the Closing Date, from furnishing information regarding Company or the Company Board from taking and disclosing to the Company Stockholders a position with respect to a tender or entering into negotiations exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the foregoing, the Company may furnish information concerning its businesses, properties or discussions with, assets to any Person or “group” (as defined in response to an Acquisition Proposal made, submitted, or announced by the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to or group concerning a Superior Proposal (as defined below), provided (2i) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes or group shall have entered into a confidentiality agreement (which shall be no less restrictive than the confidentiality agreement executed by Parent in connection with this Agreement and the Company that is customary for such transactions contemplated hereby) and (6ii) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.that:

Acquisition Proposal. (a) The From and after the date hereof, without the prior written consent of Purchaser, the Company shall notnot and will cause its Subsidiaries and its and its Subsidiaries' respective officers, nor shall it authorize or permit any Subsidiary of directors, agents and representatives including the Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company Financial Advisor (collectively, “"Representatives”") to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit indirectly, solicit, initiate or initiate --------------- encourage (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the submission of, making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal (as defined below)Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal, or furnish (iii) provide any confidential or nonpublic information or data to any Person any information with respect relating to any Acquisition Proposal; provided, however, that nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.4 5.5 or elsewhere in any other provision of this Agreement shall prohibit the CompanyAgreement, before the Closing Date, from furnishing information regarding the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or entering into negotiations or discussions withprovide any information to, without the Purchaser's prior written consent) any Person in response to third party making an unsolicited Acquisition Proposal made(a "Potential Acquirer"), submitted------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faithcommittee thereof determines, after consultation with the Financial AdvisorAdvisor and the Company's legal counsel, that (A) such third party has submitted to the Company an Acquisition Proposal is reasonably likely to lead to which has a reasonable likelihood of resulting in a Superior Proposal (as defined belowin Section 5.5(d)), and (2B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is not attributable a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure Potential Acquirer will be pursuant to take such action would constitute a Breach of its fiduciary duties confidentiality agreement on terms no less favorable to the Company Stockholders under applicable Law; than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developments, discussions and negotiations (4) including the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes on a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4current basis.

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary of the Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “"Representatives”") toof, nor shall it authorize, authorize and it shall use commercially reasonable efforts not to permit, permit any employee of of, the Company or any Company Subsidiary to, (i) directly or indirectly solicit solicit, initiate or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 6.4 or elsewhere in this Agreement shall ----------- prohibit the Company, before the Closing DateExpiration Date or adoption of this Agreement by the Company Stockholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person person in response to an Acquisition Proposal made, submitted, or announced by such Person person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the such Acquisition Proposal is reasonably likely to will, in the good faith judgment of the Company Board, lead to a Superior Proposal (as defined below)Proposal, (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a6.4(a) or Section 5.4(b6.4(b); (3) the Special Committee Company -------------- -------------- Board concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) prior to furnishing any such information to, or entering into discussions or negotiations with, such Person, the Company promptly gives Parent written notice of the existence identity of such Acquisition ProposalPerson, all of the material terms and conditions of such Acquisition Proposal and the Company’s 's intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) the Company receives from such Person executes a an executed confidentiality agreement with agreement, which shall not in any way restrict the Company that is customary for such transactions from complying with its disclosure obligations under this Agreement, and which shall have terms which (i) are no less favorable in the aggregate to the Company than those set forth in the Confidentiality Agreement and (ii) standstill provisions which are no less favorable to the Company than those set forth in the Confidentiality Agreement; and (6) contemporaneously with furnishing any such information to such Person, the Company promptly furnishes such information to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). The Company promptly shall advise Parent of any inquiry with respect to or which could lead to an Acquisition Proposal and shall promptly inform Parent of any material change in any such Acquisition Proposal or inquiry. Subject to the foregoing provisions of this Section 5.46.4, the Company shall, and shall cause its ----------- Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.6.4. -----------

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Subsidiary Representative of the Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit or initiate the submission of, any Acquisition Proposal (as defined below)Proposal, or (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 4.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person in response to an Acquisition Proposal made, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), Offer; (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders Company’s shareholders under applicable Lawlaw; (43) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; and (54) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent)Company. Subject to the foregoing provisions of this Section 5.44.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.44.4.

Acquisition Proposal. (a) The Company shall not, Chart agrees that neither it nor shall it authorize or permit any Subsidiary of the Company to, its Subsidiaries nor shall it authorize or permit any officer, director of Chart's or any investment bankerof Subsidiary's, attorney officers, directors, employees, agents or other advisorrepresentatives (the "REPRESENTATIVES") shall, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit indirectly, initiate, solicit, encourage or initiate otherwise facilitate (including without limitation by way of furnishing confidential information or data) any inquiries regarding or the submission of, making of any Acquisition Proposal (as defined belowother than by Bancorp). Chart further agrees that neither it nor any of its Subsidiaries nor any of Chart's or any of Subsidiary's Representatives shall, (ii) directly or indirectly, 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 enter into any agreement agreement, arrangement or understanding with respect to any an Acquisition Proposal or requiring it (iiior conditioned upon requiring it) participate in to abandon, terminate or fail to consummate the Merger or any discussions or negotiations regarding, or furnish to any Person any information with respect to any Acquisition Proposalother transactions contemplated by this Agreement; provided, however, that nothing in this Section 5.4 or elsewhere contained in this Agreement shall prohibit prevent Chart or Chart Board between the Companydate of this Agreement and prior to the date of Chart Meeting from (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if Chart Board receives from the Person so requesting such information an executed confidentiality agreement no less favorable to it than the Confidentiality Agreement entered into on June 3, before the Closing Date, from furnishing information regarding the Company or entering 2004 by Bancorp and Chart (and Chart shall enforce and not waive any provision of any confidentiality agreement entered into with any such Person contemplated by this Section 7.9); (B) engaging in any negotiations or discussions with, with any Person in response to who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal madeto the stockholders of Chart, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and only to the extent that that, (i) in each of the following conditions is satisfied: such case referred to in clause (1A), (B) the Special Committee concludes or (C) above, Chart Board determines in good faith, faith (after consultation with outside legal counsel) and by a majority vote of the Financial Advisorentire Chart Board that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law, (ii) in each such case referred to in clause (A) or (B) above, Chart Board also determines in good faith (after consultation with its financial advisor) that the such Acquisition Proposal Proposal, if accepted, is reasonably likely to lead to a Superior Proposal Proposal, and (as defined below)iii) in the case referred to in clause (C) above, (2w) Chart Board also determines in good faith (after consultation with its financial advisor) and by a majority of the entire Chart Board that such Acquisition Proposal is not attributable a Superior Proposal, (x) Chart Board has given Bancorp five (5) Business Days' prior written notice of its intention to a Breach recommend such Acquisition Proposal to the stockholders of Chart, (y) Chart Board has considered any changes to the Per Share Merger Consideration and to this Agreement (if any) proposed by the Company of this Section 5.4(aBancorp, and (z) or Section 5.4(b); (3) the Special Committee concludes Chart Board has determined in good faithfaith and by a majority vote of the entire Chart Board, after consultation with its Chart's outside legal counselcounsel and after consultation with its financial advisor, that it such unsolicited proposal remains a Superior Proposal even after the changes proposed by Bancorp. A "Superior Proposal" shall be a bona fide Acquisition Proposal for 100% of the outstanding securities of Chart that is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and, if consummated, is reasonably likely to result in a transaction more favorable to Chart's stockholders from a financial point of view than the Merger. Chart agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposals and shall request the failure return or destruction of all confidential information provided to take any such action would constitute a Breach parties prior to the date of this Agreement. Chart agrees that it will notify Bancorp immediately if any inquiries, proposals or offers are received by, any such information is requested from, or any discussions or negotiations are sought to be initiated or continued with, any of its fiduciary duties Representatives relating to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such an Acquisition Proposal, all . Chart will promptly (within one Business Day) advise Bancorp following receipt of the material terms and conditions of such any Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, substance thereof (including the identity of the Person making such PersonAcquisition Proposal), and the Company promptly gives Parent written notice will keep Bancorp apprised of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activitiesrelated developments, discussions and negotiations with Persons other than Parent regarding (including the terms and conditions (and any proposal that constitutes, amendments or which modifications thereto) of the Company reasonably believes would lead to an Acquisition Proposal, ) on a current basis. Chart will use its commercially-reasonable efforts to enforce (and will take the necessary steps not waive any provisions of) any confidentiality or similar agreement entered into by it or on its behalf by Xxxx Xxxx & Co. LLC or otherwise relating to inform the Persons referred to above of the obligations undertaken in this Section 5.4a potential Acquisition Proposal.

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary of the Company to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “"Representatives”") toof, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit solicit, initiate or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this Section 5.4 6.4 or elsewhere in this Agreement shall ----------- prohibit the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and provided, further, that nothing in this Section 6.4 or ----------- ----------- elsewhere in this Agreement shall prohibit the Company, before the Closing Dateexpiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person person in response to an Acquisition Proposal made, submitted, or announced by such Person person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to Section 9.1(c), entering into an agreement accepting or -------------- providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a6.4(a) -------------- or Section 5.4(b6.4(b); (32) the Special Committee Board of Directors of the Company concludes in good -------------- faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders Shareholders under applicable Law; (43) prior to furnishing any such information to, or entering into discussions or negotiations with, such person, the Company promptly gives Parent written notice of the existence identity of such Acquisition Proposalperson, all of the material terms and conditions of such Acquisition Proposal and the Company’s 's intention to furnish information to, or enter into discussions or negotiations with, such Person, and ; (4) the Company promptly gives Parent receives from such Person an executed confidentiality agreement which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written notice of any amendment in the material terms and conditions of oral information furnished to such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency Person by or on behalf of the Company’s discussions or negotiations with such Person relating , restrictions on trading and hostile take-over activities and other terms no less favorable to such amended Acquisition Proposalthe Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such Person executes a confidentiality agreement with information to such Person, the Company that is customary for furnishes such transactions and (6) the Company promptly furnishes information to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.46.4(a), -------------- the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the Company may reasonably believes would be expected to lead to an to, a Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.6.4. -----------

Acquisition Proposal. (a) The Company Seller shall not, nor shall it authorize or permit any Subsidiary of the Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company Seller (collectively, “"Representatives”") to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, permit any employee or agent of the Company or any Company Subsidiary Seller to, (i) directly or indirectly solicit or initiate the submission of, of any Acquisition Proposal (as defined below)Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to to, any Acquisition Proposal; provided, however, that nothing in this Section 5.4 6(l) or elsewhere in this Agreement shall prohibit the CompanySeller, before the Closing Date, from furnishing information regarding the Company Seller to, or entering into negotiations or discussions with, any Person in response to an Acquisition Proposal made, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee Seller's board of directors concludes in good faith, after consultation with the Financial Advisor, faith that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below)Proposal, (2) such Acquisition Proposal is not attributable to a Breach breach by the Company Seller of this Section 5.4(a) or Section 5.4(b6(l); (3) the Special Committee Seller's board of directors concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach breach of its fiduciary duties to the Company Stockholders Seller's stockholders under applicable Lawlaw; (4) the Company Seller promptly gives Parent Buyer written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s Seller's intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company Seller promptly gives Parent Buyer written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s Seller's discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company Seller that is customary for such transactions and (6) the Company Seller promptly furnishes to Parent Buyer any information provided to such Person (to the extent that such information has not been previously furnished by the Company Seller to ParentBuyer). Subject to the foregoing provisions of this Section 5.46(l), the Company Seller shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the Company Seller reasonably believes would lead to to, an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.46(l).

Acquisition Proposal. (a) The Company shall From the date hereof until the Effective Time or the termination hereof, Checkers and Rally's and their respective Subsidiaries will not, nor shall it authorize and will not authorize, permit or permit any Subsidiary of the Company cause their respective officers, directors, employees or other agents to, nor shall it authorize directly or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary toindirectly, (i) directly take any action to solicit, initiate or indirectly solicit or initiate the submission of, encourage any Acquisition Proposal (as defined belowhereinafter defined), (ii) enter waive any provision of any standstill or similar agreements entered into by Rally's or Checkers or any agreement of them with respect to any Acquisition Proposal Rally's or Checkers, (iii) participate engage in negotiations regarding or disclose any discussions or negotiations regardingnonpublic information relating to any other party, respectively, or furnish (iv) afford access to their respective properties, books or records to any Person any information person that may be considering making, or has made, an Acquisition Proposal. Nothing contained in this Section 6.6 shall prohibit Rally's or Checkers and their respective Boards of Directors from (i) taking and disclosing a position with respect to any Acquisition Proposal; provideda tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated by the Commission under the Exchange Act, however, that nothing in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from (ii) furnishing information regarding the Company to, or entering into negotiations or discussions with, any Person in response person or entity that makes an unsolicited bona fide proposal to an Acquisition Proposal madeacquire such party pursuant to a merger, submittedconsolidation, share exchange, purchase of a substantial portion of the assets, business combination or announced by such Person (other similar transaction, if, and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and only to the extent that each that, (A) such Board of Directors determines in the good faith exercise of its informed business judgment and after receiving the advice and recommendation of its special committee of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, Board of Directors that the Acquisition Proposal is reasonably likely or could be more advantageous to lead to their respective stockholders than the transactions contemplated by this Agreement (a "Superior Proposal (as defined belowProposal"), (2B) prior to furnishing such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter entering into discussions or negotiations with, such Personperson or entity, and the Company promptly gives Parent such party provides written notice of any amendment in to the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout other parties hereto to the pendency of the Company’s effect that it is furnishing information to, or entering into discussions or negotiations with with, such Person relating person or entity, and (C) subject to such amended Acquisition Proposal; (5) such Person executes a any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Company that is customary for Board of Directors to comply with its fiduciary duties to its stockholders imposed by law) such transactions and (6) party keeps the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above parties hereto informed of the obligations undertaken in this Section 5.4status of any such negotiations or discussions.

Acquisition Proposal. From the date hereof until the earlier of (a) The Company the Closing, (b) the termination of this Agreement pursuant to Section 9.2 hereof or (c) the filing of a Chapter 11 Case (in which event the provisions of Section 5.11 shall govern), and except as expressly permitted by the following provisions of this Section 5.10, Seller will not, nor shall will it authorize or permit any Subsidiary of the Company its Subsidiaries to, nor shall will it authorize or permit any officer, director or employee of or any investment banker, attorney attorney, accountant or other advisor, agent advisor or representative of the Company of, Seller or any Subsidiary of the Company (collectively, “Representatives”) its Subsidiaries to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company directly or any Company Subsidiary toindirectly, (i) directly solicit, initiate or indirectly solicit or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to of any Acquisition Proposal or (iiiii) participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to any Acquisition Proposal; provided, however, that nothing contained in this Section 5.4 or elsewhere in this Agreement 5.10 shall prohibit the Company, before the Closing Date, Board of Directors of Seller from furnishing information regarding the Company to, or entering into discussions or negotiations or discussions with, any Person in response to person that makes an unsolicited bona fide written Acquisition Proposal madeif, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and only to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2A) such Acquisition Proposal is not attributable constitutes a Superior Proposal, or (B) such Acquisition Proposal constitutes a Recapitalization Transaction and (C) prior to a Breach by taking such action, Seller (x) provides reasonable notice to Buyer to the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, effect that it is reasonably likely that the failure to take taking such action would constitute and (y) receives from such person an executed confidentiality agreement in reasonably customary form. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, Seller shall notify Buyer of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable after its receipt thereof, and shall provide Buyer with a Breach copy of its fiduciary duties any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Buyer on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives topromptly give Buyer a copy of any information delivered to such person which has not previously been reviewed by Buyer. Following the commencement of a Chapter 11 Case, cease immediately all existing activities, discussions the solicitation and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an acceptance of competing offers (including Acquisition Proposal, and Proposals) will take the necessary steps to inform the Persons referred to above of the obligations undertaken be governed by Section 5.11. Nothing in this Section 5.45.10 (or otherwise in this Agreement) will restrict the ability of Seller to enter into or continue discussions or negotiations, or to provide information to appropriate persons in connection with any contemplated Recapitalization Transaction.

Acquisition Proposal. (a) The Company Unless and until this Agreement shall have been terminated by either party in accordance with Article 10, the Seller shall not, nor shall it authorize or permit any Subsidiary of the Company its Subsidiaries to, nor shall it authorize or permit any officerEmployee, director or any investment banker, attorney attorney, accountant or other advisor, agent advisor or representative of the Company Seller or any Subsidiary of the Company (collectively, “Representatives”) its Subsidiaries to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company directly or any Company Subsidiary to, indirectly: (i) directly solicit, initiate, or indirectly solicit or initiate encourage the submission of, of any proposal or offer from any other person or entity relating to any Acquisition Proposal (as defined below), Proposal; (ii) enter into cooperate with, or furnish or cause to be furnished any agreement non-public information concerning its business, properties or assets or the business, properties or assets of any of its Subsidiaries to, any other person or entity in connection with respect to any Acquisition Proposal or Proposal; (iii) participate in any discussions or negotiations regarding, or furnish take any other action to facilitate any Person any information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 inquiries or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person in response to an Acquisition Proposal made, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach making of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company may reasonably believes would be expected to lead to an to, any Acquisition Proposal; or (iv) enter into any agreement or understanding with any other Person or entity with the intent to effect any Acquisition Proposal. Notwithstanding the foregoing, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken nothing contained in this Section 5.45.4 shall, on or after the date of this Agreement, prohibit the Seller or its Board of Directors, to the extent required by its fiduciary duties under applicable law (based upon the advice of counsel selected by the Seller), from (1) providing information to, or participating in discussions or negotiations with any Person or entity that makes an unsolicited inquiry with respect to the Seller if the Board of Directors reasonably believes that such Person or entity may propose an Acquisition Proposal on terms that, for the Shareholders, are superior from a financial point of view to the terms of the transactions contemplated hereby (a "Superior Acquisition Proposal"), or (2) subject to Section 5.4(c), entering into an agreement with respect to a Superior Acquisition Proposal after receipt by Buyer of the notices required under Section 5.4(c).

Acquisition Proposal. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary of the Company to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “"Representatives”") toof, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly solicit solicit, initiate or initiate encourage the submission of, any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this Section 5.4 6.4 or elsewhere in this Agreement shall prohibit ----------- the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and provided, further, that nothing in this Section 6.4 or ----------- elsewhere in this Agreement shall prohibit the Company, before the Closing Dateexpiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any Person person in response to an Acquisition Proposal made, submitted, or announced by such Person person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to Section 9.1(c), entering into an agreement accepting or -------------- providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) the Special Committee concludes in good faith, after consultation with the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (as defined below), (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a6.4(a) -------------- or Section 5.4(b6.4(b); (32) the Special Committee Board of Directors of the Company concludes in good -------------- faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) the Company promptly gives Parent written notice of the existence of such Acquisition Proposal, all of the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.reasonably