Common use of Competing Transactions Clause in Contracts

Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.

Competing Transactions. (a) The Nothing contained in this Agreement shall prohibit the Company agrees that from from, prior to the date of this Agreement until the Effective Time orStockholder's Meeting (i) furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited written, bona fide proposal to the Company with respect to a Competing Transaction which could reasonably be expected to result in a Superior Proposal, if, (A) the failure to take such action would be inconsistent with the Board's and the Independent Committee's fiduciary duties to the Company's stockholders under applicable law, and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company (x) provides reasonable notice to Concord to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and (y) receives from such person a fully executed confidentiality agreement, (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 5.2, or recommending an unsolicited, bona fide proposal with respect to a Competing Transaction which could reasonably be expected to result in a Superior Proposal, following the receipt of such a proposal, if earlierthe failure to take such action would be inconsistent with the Board's and the Independent Committee's fiduciary duties to the Company's stockholders under applicable law. As used in this Agreement, the termination of this Agreement in accordance with Article IX, neither it nor "Competing Transaction" shall mean any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives the following (including without limitation any investment banker, attorney or account retained other than the transactions contemplated by this Agreement) involving the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, : (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or assets or otherwise) other similar transaction involving the Company or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of the Company and its Subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of capital stock of the Company or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired Beneficial Ownership of 15% or more or such person or group having increased its Beneficial Ownership beyond 15% of the outstanding shares of capital stock of the Company; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. For purposes of this Agreement, "Superior Proposal" means any bona fide written proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, all of the shares of Company Common Stock and Preferred Stock then outstanding or all or substantially all of the assets of the Company and the assumption of the liabilities and obligations of the Company to be followed by a pro rata distribution of the sale proceeds to stockholders of the Company, that (i) is not subject to any financing conditions or contingencies, (ii) provides holders of Company Common Stock and Preferred Stock with per share consideration that the Independent Committee determines in good faith, after receipt of advice of its financial advisor, is more favorable from a financial point of view than the consideration to be received by holders of Company Common Stock and Preferred Stock in the Merger, (iii) is determined by the Independent Committee in its good faith judgment, after receipt of advice of its financial advisor and outside legal counsel, to return be likely of being completed (or if permitted by taking into account all legal, financial, regulatory and other aspects of the applicable confidentiality proposal, the Person making the proposal and the expected timing to complete the proposal), (iv) does not, in the definitive agreement, destroycontain any "due diligence" conditions, and (v) all information required to be returned (or, if applicable, destroyed) has not been obtained by such Person under the terms or on behalf of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soCompany in violation of this Section 4.3.

Competing Transactions. (a) The Company agrees that from the date of Except as otherwise set forth in this Agreement Section, until the Effective Time or, if earlier, or the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its SubsidiariesCompany, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the The Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.

Competing Transactions. (a) The Company agrees that from the date of Except as otherwise set forth in this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IXSection 7.03, neither it the Company nor any of its Subsidiaries shall, nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by shall the Company or any of its Subsidiaries, the Company Board Subsidiaries authorize or the Special Committee or permit any of the Company’s Subsidiaries) not their respective Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic any non-public information), or take any other action to knowingly facilitate, any inquiries or indication of interest or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any a Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity of its Subsidiaries in furtherance of such inquiries or indication of interest or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionTransaction (other than to state that the Company is not permitted to have such discussions), (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer with respect to or that may reasonably be expected to lead to to, a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger Merger, or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentialitystandstill, standstill confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentialityconfidentiality or standstill agreement or Takeover Statute). Upon execution of this Agreement, standstill the Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the date of this Agreement by the Company with respect to a Competing Transaction and deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Competing Transaction, effective on and from the date hereof. The Company shall promptly request each Person that has heretofore executed a standstill, confidentiality or similar agreement in connection with such Person’s consideration of a Competing Transaction to return (or Takeover Statute and if permitted by the applicable agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable agreement and, if requested by Parent, to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, Person’s obligation to do any of the foregoingso. The Company acknowledges and agrees that the doing of any violation of the foregoing restrictions on the Company set forth in this Section 7.03(a) by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do so.

Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives willshall not, and that it will cause each of its Subsidiaries and each of shall not permit or authorize the Company's subsidiaries, its and its Subsidiaries’ Representatives their officers, directors, employees, controlled affiliates, agents or other representatives (including without limitation any investment banker, financial advisor, attorney or account accountant retained by the Company it or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not tosubsidiaries), directly or indirectly, (i) solicitto initiate, initiate solicit or knowingly encourage (including by way of furnishing nonpublic informationinformation or assistance), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect relating to, or that may reasonably be expected to lead to, any Competing Alternative Transaction, or enter into discussions (iiexcept as to the existence of these provisions) enter into, maintain, continue or otherwise engage or participate in negotiate with any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing an Alternative Transaction, (iii) or agree to, approve, or endorse, recommend, execute, enter into or consummate any Competing Alternative Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take notify (within 24 hours after the Company attains knowledge thereof) Parent of all action reasonably necessary relevant terms of any such inquiries or proposals received by the Company or by any subsidiary or by any such officer, director, employee, agent, investment banker, financial advisor, attorney, accountant or other representative relating to terminate any of such matters and if such inquiry or proposal is in writing, the Company shall deliver or cause to be terminated delivered (within 24 hours of receipt) to Parent a copy of such inquiry or proposal and update Parent (within 24 hours of receipt) as to any such waiver previously granted material changes (and provide Parent with copies of same if in writing) with respect to any provision of such inquiry or proposal, it being understood that Parent shall hold any such confidentiality, standstill inquiry or similar agreement proposal or Takeover Statute and term confidential pursuant to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any the terms of the foregoing. The Company acknowledges and agrees Confidentiality Agreement; provided, however, that nothing contained in this subsection (a) shall prohibit the doing board of any directors of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any subsidiaries, and each of their Representatives with respect to a Competing Transaction. Except for officers, directors, employees, affiliates, agents or other representatives (including without limitation any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c)investment banker, the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4financial advisor, 2013 in connection with such Person’s consideration of acquiring (whether attorney or accountant retained by merger, acquisition of share or assets or otherwise) the Company it or any of its Subsidiariessubsidiaries) from (i) furnishing information to, entering into a confidentiality agreement with, or entering into discussions or negotiations with, any persons or entity in connection with an unsolicited bona fide proposal in writing by such person or entity relating to an Alternative Transaction if, and only to the extent that (A) the board of directors of the Company determines in good faith, after consultation with and taking into account advice of its outside legal counsel, that such action is necessary to comply with its fiduciary duties under Delaware law, (B) such action is in response to an unsolicited bona fide written proposal made by a third party relating to an Alternative Transaction on terms that the Company's board of directors believes, after consultation with and taking into account advice from the Company's financial advisor and outside legal counsel to be more favorable to the Company's stockholders than the Company Merger or may reasonably be expected to result in an Alternative Transaction on terms that the Company's board of directors believes taking into account advice from the Company's financial advisor and outside legal counsel would be more favorable to the Company's stockholders than the Company Merger, and in each case (I) any amount of financing, to return the extent required, is (in the good faith judgment of the Company's board of directors, after consultation with the Company's financial advisors and outside legal counsel) then reasonably certain of being obtained on a timely basis, (II) there is no condition to closing such Alternative Transaction relating to the performance or completion of due diligence (it being understood that customary closing conditions relating to the accuracy of representations and warranties shall not be deemed to be such a condition) with respect to the Company by such third party, and (III) such Alternative Transaction is for more than 50% of the voting power of the voting securities of the Company then outstanding or all or substantially all of the assets of the Company and its subsidiaries, taken as a whole (a "Superior Proposal"), and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity the Company (x) provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (y) the Company receives from such person or entity an executed confidentiality agreement with terms no less restrictive than those contained in the Confidentiality Agreement; (ii) complying with Rule 14e-2 promulgated under the Exchange Act or from making any legally required disclosure to stockholders with regard to an Alternative Transaction; provided, however, that neither Company nor its Board of Directors nor any committee thereof shall, except in the event that such Alternative Transaction constitutes a Superior Proposal, withdraw, qualify, or modify, or propose to withdraw, qualify or modify, its position with respect to the Company Merger or this Agreement or approve or recommend, or propose to approve or recommend an Alternative Transaction; or (iii) in the event of a Superior Proposal, to enter into an agreement or understanding with respect to the Superior Proposal; provided, however, that if permitted by Parent proposes to amend this Agreement after receipt of a notice described under Section 6.03(c) below, the applicable confidentiality board of directors of the Company shall consider such proposed amendments and shall not enter into any agreement regarding such Alternative Transaction unless it has provided the Parent with written notice, at least twenty-four (24) hours in advance of entering into such agreement, destroy) all information required to be returned (or, if applicable, destroyed) by which notice shall indicate that the board of directors has reconfirmed its view that such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soAlternative Transaction remains a Superior Proposal.

Competing Transactions. (a) The Company agrees that from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance with the intent to induce the making of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionTransaction , or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement)Merger, (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar confidentiality agreement or Takeover Statutes (and the Company shall promptly take all action reasonably steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, confidentiality or standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreementStatute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries Subsidiaries, and shall use commercially reasonable efforts to cause its and its Subsidiaries’ Representatives to, immediately promptly cease and cause to be terminated all existing discussions or negotiations with any Persons (other than the Buyer Group Parties) conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the The Company shall promptly request each Person (other than the Buyer Group Parties) that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soagreement.

Competing Transactions. (a) The Company agrees that from During the date Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of this Agreement until the Effective Time ortransactions contemplated hereby, if earlier, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of their respective Representatives willeach Party shall not, and that it will shall cause each its Representatives to not, without the prior written consent of its Subsidiaries BIG and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not toHightimes, directly or indirectly, (i) solicit, assist, initiate or knowingly encourage (including by way of furnishing nonpublic information)facilitate the making, submission or announcement of, or take any other action to knowingly facilitateintentionally encourage, any inquiries Acquisition Proposal, (ii) furnish any non-public information regarding such Party or the making of its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any proposal Person or offer group (including without limitation other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any proposal Person or offer to the Company’s shareholders) group with respect to, or that may reasonably could be expected to lead to, any Competing Transactionan Acquisition Proposal, (iiiv) enter intoapprove, maintain, continue endorse or otherwise engage or participate in any discussions or negotiations withrecommend, or provide any non-public information publicly propose to approve, endorse or data concerning the Company or any Subsidiary torecommend, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing TransactionAcquisition Proposal, (iiiv) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger negotiate or enter into any letter of intent, Contract agreement in principle, acquisition agreement or commitment contemplating or otherwise relating other similar agreement related to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement)Acquisition Proposal, or (vvi) resolve, propose or agreerelease any third Person from, or authorize or permit waive any Representativeprovision of, any confidentiality agreement to do which such Person is a party. Each Party shall notify the other Parties as promptly as practicable (and in any event within 48 hours) orally and in writing of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing receipt by any of its Subsidiaries or any Representative of the Company such Party or any of its Subsidiaries Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if verbal) and the identity of the Person making such inquiry, proposal, offer or request for information. Each Party shall be deemed to be a breach by keep BIG and Hightimes promptly informed of the Company status of this Section 7.03(a)any such inquiries, proposals, offers or requests for information. The Company During the Interim Period, each Party shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing any solicitations, discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives Person with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c)Acquisition Proposal and shall, the Company and shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4direct its Representatives to, 2013 in connection with cease and terminate any such Person’s consideration of acquiring (whether by mergersolicitations, acquisition of share discussions or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do sonegotiations.

Competing Transactions. (a) The Company agrees that from During the date of this Agreement until the Effective Time orPre-Closing Period, if earlierSeller shall not, the termination of this Agreement in accordance with Article IX, neither it nor any of shall cause its Subsidiaries nor any of their respective Representatives willcontrolled Affiliates not to, and that it will shall use its commercially reasonable efforts to cause each of its Subsidiaries representatives, officers, directors and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) agents not to, directly or indirectly, (ia) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making submission of any proposal or offer from any third-party (including without limitation other than Buyer and its Affiliates) for the acquisition of the Business or any proposal material portion of the Business or offer Acquired Assets (other than sales of inventory or the grant of non-exclusive licenses to use products of the Company’s shareholdersBusiness in the ordinary course of business) with respect to, or that may reasonably be expected to lead to, any Competing Transaction(an “Acquisition Proposal”), (iib) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations withother than with Buyer, Seller and their respective representatives, officers, directors, employees and agents regarding an Acquisition Proposal, (c) furnish any confidential information regarding the Business or provide the Acquired Assets to any nonthird-public information party in connection with an Acquisition Proposal or data concerning the Company or (d) enter into a confidentiality agreement with any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer third-party with respect to a Competing Transaction an Acquisition Proposal. Seller shall notify Buyer promptly, and in any event within 48 hours, if any third-party makes an Acquisition Proposal during the Pre-Closing Period (including the terms thereof and the identity of such third-party, subject to any existing applicable confidentiality agreement or applicable legal requirement). Seller shall, and shall cause its controlled Affiliates to, and shall use commercially reasonable efforts to cause its and its controlled Affiliates’ representatives to (x) as of the date hereof, immediately cease any proposal existing solicitations, discussions or offer negotiations with any third-party (other than Buyer and its Affiliates) that may is interested in, or has indicated any interest regarding, entering into any transaction that could reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction an Acquisition Proposal (other than any Acceptable Confidentiality Agreement), Buyer or its Affiliates) and (ivy) grant any waiver, amendment request the prompt return or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision destruction of any confidential information provided to such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted third-party prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do sodate hereof.

Competing Transactions. (a) The Company agrees Sellers and RMST agree that from (i) between the date of this Agreement until and the Effective Time ordate the Bidding Procedures Order is entered by the Bankruptcy Court and (ii) from and after the date that the auction is declared closed by Sellers and RMST, if earlierSellers and RMST will not, the termination of this Agreement in accordance with Article IX, neither it nor any of its Subsidiaries nor any of and will not permit their Affiliates or their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (iA) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations contact with, or provide solicit or encourage submission of any non-public information inquiries, proposals or data concerning the Company or any Subsidiary tooffers by, any Person with respect to a Competing Transaction or entity in furtherance of such inquiries otherwise facilitate any effort or attempt to obtain make a proposal or offer with respect to a Competing Transaction or (B) engage in, continue or otherwise participate in any proposal discussions or offer that may reasonably be expected negotiations regarding, or provide any non-public information or data to lead to a any Person relating to, any Competing Transaction; provided, (iii) agree tohowever, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision Section 5.12(a)(i) above, third parties may continue to conduct due diligence and Sellers and RMST shall be permitted to provide access to their online data room and negotiate customary confidentiality agreements with other interested buyers for purposes of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any being competing bidders for the Transferred Assets. Until the entry of the foregoing. The Company acknowledges Bidding Procedures Order, Sellers and agrees that the doing of RMST shall promptly (and, in any of the foregoing by event, within forty-eight (48) hours) notify Purchaser if any of its Subsidiaries written proposals or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives offers with respect to a Competing Transaction. Except for , are received by it or any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c)of their Affiliates or its or their respective Representatives indicating, the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration notice, the material terms and conditions of acquiring any such proposals or offers but not the name of the offeror (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (orincluding, if applicable, destroyedcopies of any written requests, proposals or offers, including proposed agreements, in each case with the name of such offeror and other identifying details redacted) by such Person under and thereafter shall keep Purchaser informed, on a current basis, of the status and terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce any such Person’s obligation to do soproposals or offers (including any material amendments thereto).

Competing Transactions. (a) The Company agrees that Notwithstanding anything to the contrary set forth in this Agreement, from the date hereof and continuing until 11:59 p.m. New York City time on the date which is thirty (30) days after the date hereof (the “Go-Shop Period End Date”), the Company and the Company Subsidiaries and their respective Representatives shall have the right, acting under the direction of the Special Committee, to directly or indirectly (i) initiate, solicit or encourage Competing Transactions (or inquiries, proposals or offers that could reasonably be expected to lead to a Competing Transaction), including by way of public disclosure and by way of providing access to non-public information to any person (each, a “Solicited Person”) pursuant to one (1) or more Acceptable Confidentiality Agreements entered into by such Solicited Person (it being understood that an Acceptable Confidentiality Agreement shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement); provided, that the Company shall promptly provide to Parent any information concerning the Company or any Company Subsidiary that it has provided to any Solicited Person which was not previously provided to Parent; and (ii) enter into and maintain discussions or negotiations with respect to Competing Transactions (or inquiries, proposals or offers that could reasonably be expected to lead to a Competing Transaction) or otherwise cooperate with, assist or participate in, facilitate, or take any other action in connection with any such inquiries, proposals, discussions or negotiations. Within forty-eight (48) hours following the Go-Shop Period End Date, the Company shall notify Parent of the material terms and conditions of any proposal or offer regarding a Competing Transaction (including any amendments or modifications thereof) received from any Excluded Party (which shall include a copy of the proposal made by such Excluded Party (which copy may be redacted to omit the identity of such Excluded Party) and a summary of any financing material related thereto (if any)). Except as otherwise expressly provided in Section 7.04(c), the Company shall, and the Company shall cause the Company Subsidiaries and its and their Representatives to, (1) immediately cease any activities permitted by the first sentence of this Agreement Section 7.04(a), and any discussions with any person (other than Parent and any Excluded Party) that are ongoing as of the Go-Shop Period End Date and that relate to, or could reasonably be expected to lead to, a Competing Transaction, and (2) use its reasonable best efforts to promptly request each person (other than Parent and any Excluded Party) to return or destroy all information required to be returned or destroyed by such person under the terms of the applicable Acceptable Confidentiality Agreement. Except as set forth in Section 7.04(c), immediately after the Go-Shop Period End Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries Company Subsidiary shall, nor shall the Company or any Company Subsidiary authorize or permit any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives (including without limitation any investment banker, attorney or account retained by the Company or any of its Subsidiaries, the Company Board or the Special Committee or any of the Company’s Subsidiaries) not to, directly or indirectly, (iA) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including including, without limitation limitation, any proposal or offer to the Company’s shareholdersits Stockholders) with respect that relates to, constitutes, or that may could reasonably be expected to lead to, any Competing Transaction, (iiB) enter into, maintain, maintain or continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public nonpublic information to or data concerning the Company otherwise knowingly assist or any Subsidiary tocooperate with, any Person person or entity in furtherance of such inquiries inquiries, proposals or offers or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to for a Competing Transaction, (iiiC) agree to, approve, endorse, recommend, execute, enter into endorse or consummate recommend any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger or enter into any letter of intent, intent or Contract or commitment contemplating or otherwise relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement or Takeover Statutes (and the Company shall promptly take all action reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement)Transaction, or (vD) resolve, propose or agreerelease any third party from, or authorize or permit waive any Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach by the Company of this Section 7.03(a). The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Companyprovision of, any of its Subsidiaries confidentiality or any of their Representatives with respect standstill agreement to which it is a Competing Transaction. Except for any Acceptable Confidentiality Agreement executed in accordance with Section 7.03(c), the Company shall promptly request each Person that has heretofore executed a confidentiality agreement after September 4, 2013 in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to use reasonable best efforts to enforce such Person’s obligation to do soparty.