Common use of Other Negotiations Clause in Contracts

Other Negotiations. Following the date hereof and ------------------ until termination of this Agreement pursuant to Section 9.1, RTI will not (and it will not permit any of its officers, directors, employees, agents and Affiliates on its behalf to) take any action to solicit, initiate, seek, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than Mpath) regarding any acquisition of RTI, any merger or consolidation with or involving RTI, or any acquisition of any material portion of the assets of RTI, or any acquisition of any capital stock of RTI, or any material license of RTI Proprietary Rights (any of the foregoing being referred to in this Agreement as an "Acquisition Transaction") or enter into an agreement concerning any Acquisition Transaction with any party other than Mpath. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, RTI shall (i) notify Mpath immediately (orally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party of RTI's obligations under this Agreement (without any reference to Mpath). Notwithstanding the foregoing, nothing in this Section 5.6 shall be construed to restrict the ability of the RTI Board of Directors to take such actions in connection with any proposed Acquisition Transactions that such Board reasonably determines in good faith to be required to permit it to discharge properly its fiduciary duties, provided that this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1.

Other Negotiations. Following the date hereof and ------------------ until termination of this Agreement pursuant to Section 9.1, RTI Target will not (and it will not permit any of its officers, directors, employees, agents and Affiliates on its behalf to) take any action to solicit, initiate, entertain, seek, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than MpathHearMe) regarding any acquisition of RTITarget, any merger or consolidation with or involving RTITarget, or any acquisition of any material portion of the assets of RTITarget, or any acquisition of any capital stock of RTITarget, or any material license of RTI Target Proprietary Rights (any of the foregoing being referred to in this Agreement as an "Acquisition TransactionACQUISITION TRANSACTION") or enter into an agreement concerning any Acquisition Transaction with any party other than MpathHearMe. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI Target receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, RTI (an "ACQUISITION PROPOSAL") Target shall (i) notify Mpath HearMe immediately (orally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party of RTITarget's obligations under this Agreement (without any reference to MpathHearMe). Notwithstanding the foregoing, nothing in this Section 5.6 shall be construed to restrict the ability of the RTI Target Board of Directors to take such actions in connection with any proposed Acquisition Transactions that such Board reasonably determines in good faith based upon written advice of counsel to be required to permit it to discharge properly its fiduciary duties, provided PROVIDED that this qualification shall in no way affect the obligations -------- of RTI Target and the RTI Target Board of Directors pursuant to Section 5.1.

Other Negotiations. Following the date hereof and ------------------ until Closing or termination of this Agreement pursuant to Section 9.1Agreement, RTI will as the case may be, BSRT and Sellers shall not (and it will not permit any of its they shall instruct their respective officers, directors, trustees, employees, representatives, agents and Affiliates on its behalf not to), directly or indirectly, (i) take any action to solicit, initiate, seek, or encourage (including by way of furnishing non-public information), or support take any inquiryother action to facilitate, any inquiries or the making of any proposal that constitutes, or offer frommay reasonably be expected to lead to, furnish an Acquisition Proposal (as hereinafter defined), including, without limitation, any information Superior Proposal (as hereinafter defined), or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal, or otherwise cooperate in any way with respect to, or assist or participate in any negotiations withor facilitate, any Acquisition Proposal with any person, corporation, partnershipentity or "group," as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (each, a "Third Party"), other than Buyer and its affiliates, representatives and agents, PROVIDED, HOWEVER, that nothing contained in this Section 18.1 shall prohibit BSRT or Sellers (individually or in the aggregate) from (i) furnishing non-public information with respect to BSRT and Sellers (pursuant to a customary confidentiality agreement) to any person or other entity that makes an unsolicited bona fide Acquisition Proposal after the date hereof, (ii) participating in negotiations regarding such Acquisition Proposal if, and only to the extent that, a majority of the disinterested members of BSRT's Board of Trustees determines in good faith that (x) such action is required by its fiduciary duties under applicable law or group BSRT's Organizational Documents, and (other than Mpathy) regarding any acquisition of RTI, any merger or consolidation with or involving RTIthe Acquisition Proposal constitutes, or any acquisition is reasonably likely to lead to, a Superior Proposal and (z) BSRT complies with the provisions of any material portion of the assets of RTISection 18.3 hereof, or any acquisition of any capital stock of RTI, or any material license of RTI Proprietary Rights and (any of the foregoing being referred iii) responding to routine shareholder inquiries in accordance with applicable law and/or BSRT's Organizational Documents. Nothing in this Agreement as an "Acquisition Transaction") or enter into an agreement concerning any Acquisition Transaction with any party other than Mpath. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, RTI 18.1 shall (i) notify Mpath immediately permit BSRT to terminate this Agreement (orally and except as specifically provided in writing) of such offerthis Agreement), indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party except as otherwise provided herein, permit BSRT to enter into any agreement with respect to an Acquisition Proposal during the term of RTI's obligations under this Agreement (without it being agreed that during the term of this Agreement, neither BSRT nor any reference to Mpath). Notwithstanding the foregoing, nothing in this Section 5.6 shall be construed to restrict the ability of the RTI Board of Directors to take such actions in connection Sellers shall enter into any agreement with any proposed person that provides for, or in any way facilitates, an Acquisition Transactions that such Board reasonably determines in good faith to be required to permit it to discharge properly its fiduciary duties, provided that Proposal) or (iii) affect any other obligation of any party under this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1Agreement.

Other Negotiations. Following the date hereof Unless and ------------------ until termination of this Agreement shall have ------------------- been terminated pursuant to Section 9.1ARTICLE IX hereof, RTI will not neither EVG nor any Shareholder will, directly or indirectly, (and it will not permit any of use its best efforts to assure that its officers, directors, employees, agents affiliates and Affiliates legal, accounting and financial advisors do not on its behalf tobehalf) take any action to solicit, initiate, seek, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than Mpathnegotiations with PhotoLoft) regarding any acquisition of RTIEVG, any merger or consolidation with or involving RTIEVG, or any acquisition of any material a portion of the stock or assets of RTI, or EVG. EVG agrees that any acquisition of any capital stock of RTI, or any material license of RTI Proprietary Rights (any of the foregoing being negotiations referred to in this Agreement Section 5.3 (other than negotiations with PhotoLoft) in progress as an "Acquisition Transaction") of the date hereof will be suspended during the period referred to above and that, in no event, will EVG accept or enter into an agreement concerning any Acquisition Transaction with any such third party other than Mpathregarding matters contemplated herein during such period. If between the date of this Agreement EVG and the termination Shareholders represent and warrant that they have the legal right to terminate or suspend any such pending negotiations with third parties, including, but not limited to, any pending negotiations with Guild.com. EVG will notify PhotoLoft immediately after receipt by XXX (xx xny of this Agreement pursuant to Section 9.1its officers, RTI receives from a directors, employees, shareholders, affiliates or advisors) of any unsolicited proposal for, or inquiry respecting, any third party any offer or indication of interest regarding any Acquisition Transaction, acquisition transaction or any request for nonpublic information regarding in connection with such a proposal or inquiry or for access to the properties, books or records of EVG by any Acquisition Transactionperson or entity that informs EVG that it is considering making, RTI shall (i) notify Mpath immediately (or has made, such a proposal or inquiry. Such notice to PhotoLoft will be made orally and in writing) of such offer, indication of interest or request, including writing and will indicate in reasonable detail the identity of such party the person making the proposal or inquiry and the full terms and conditions of any such proposal therein, and (ii) notify such third party of RTI's obligations under this Agreement (without any reference to Mpath). Notwithstanding the foregoing, nothing in this Section 5.6 shall be construed to restrict the ability of the RTI Board of Directors to take such actions in connection with any proposed Acquisition Transactions that such Board reasonably determines in good faith to be required to permit it to discharge properly its fiduciary duties, provided that this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1or inquiry.

Other Negotiations. Following the date hereof Unless and ------------------ until termination of this Agreement shall have been ------------------ terminated by either party pursuant to Section 9.17.1 hereof, RTI will not or such later date when all outstanding indebtedness under that certain Promissory Note of Starseed dated September 1, 1998 attached hereto as Exhibit 5.3 has been repaid (the "Promissory Note"), Starseed shall not, directly or indirectly, (and it will not permit any of use --------------- its best efforts to assure that its officers, directors, employees, agents affiliates and Affiliates legal, accounting and financial advisors do not on its behalf tobehalf) take any action to solicit, initiate, seek, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than Mpathnegotiations with GeoCities) regarding any acquisition of RTIStarseed, any merger or consolidation with or involving RTIStarseed, or any acquisition of any material portion of the stock or assets of RTI, or Starseed. Starseed agrees that any acquisition of any capital stock of RTI, or any material license of RTI Proprietary Rights (any of the foregoing being negotiations referred to in this Agreement Section 5.3 (other than negotiations with GeoCities) in progress as an "Acquisition Transaction") of the date hereof will be suspended during the period referred to above and that, in no event, will Starseed accept or enter into an agreement concerning any Acquisition Transaction with any party other than Mpath. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI receives from a such third party regarding matters contemplated herein during such period. Starseed represents and warrants that it has the legal right to terminate or suspend any offer such pending negotiations with third parties. Starseed will notify GeoCities immediately after receipt by Starseed (or indication any of interest regarding its officers, directors, employees, affiliates or advisors) of any Acquisition Transactionunsolicited proposal for, or inquiry respecting, any third party acquisition transaction or any request for nonpublic information regarding in connection with such a proposal or inquiry or for access to the properties, books or records of Starseed by any Acquisition Transactionperson or entity that informs Starseed that it is considering making, RTI shall (i) notify Mpath immediately (or has made, such a proposal or inquiry. Such notice to GeoCities will be made orally and in writing) of such offer, indication of interest or request, including writing and will indicate in reasonable detail the identity of such party the person making the proposal or inquiry and the full terms and conditions of any such proposal thereinor inquiry. This Section 5.3 shall supersede Section 2 of that certain letter agreement dated as of September 1, 1998 between Starseed and GeoCities (iithe "Letter Agreement") notify such third party and shall survive termination of RTI's obligations under this Agreement (without any reference to Mpath)Agreement. Notwithstanding the foregoing, nothing in this Section 5.6 shall be construed to restrict the ability of the RTI Board of Directors to take such actions in connection with any proposed Acquisition Transactions that such Board reasonably determines in good faith to be required to permit it to discharge properly its fiduciary duties, provided that this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1.----------------

Other Negotiations. (a) Following the date hereof and ------------------ until termination of this Agreement pursuant to Section 9.1, RTI IRF will not (not, and it will not permit any of its officers, directors, members, employees, agents representatives (including, without limitation, accountants, attorneys, investment bankers or investors), agents, advisors and Affiliates (on its behalf directly or indirectly through another person to) take any action to solicit, initiate, seek, encourage or support or take any other action designed to facilitate any inquiry, proposal or offer from, furnish any information (including this Agreement) (each, an “IRF Representative”) to, or participate in any negotiations with, or afford access to the properties, books or records of IRF to any corporation, partnership, person or other entity or group (other than MpathABE) regarding any acquisition of RTIIRF, any merger or consolidation with or involving RTIIRF, or any acquisition of any material portion of the IRF Units or assets of RTI, or any acquisition of any capital stock of RTI, IRF or any material license of RTI IRF Proprietary Rights (any of the foregoing being referred to in this Agreement as an "“Acquisition Transaction"”) or enter into an agreement concerning any Acquisition Transaction with any party other than MpathABE. If between IRF will, and will cause each IRF Representative to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date of this Agreement and hereof with any parties with respect to any proposed Acquisition Transaction other than the termination of this Agreement pursuant to Section 9.1, RTI receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, RTI shall (i) notify Mpath immediately (orally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party of RTI's obligations under this Agreement (without any reference to Mpath)Merger. Notwithstanding the foregoing, nothing contained in this Section 5.6 5.9 shall be construed prevent IRF from furnishing information to, affording access to restrict its properties, books and records to or entering into discussions or negotiations with, any person that makes an unsolicited and bona fide proposal with respect to an Acquisition Transaction after the ability date hereof if, and only to the extent that, IRF’s board of the RTI Board of Directors to take such actions in connection directors, after consulting with any proposed Acquisition Transactions that such Board reasonably its financial advisor, if any, and legal counsel, determines in good faith that (i) such proposal constitutes a Superior Proposal (as defined in subsection (d) below) and (ii) such action is necessary for IRF’s board of directors to be required to permit it to discharge properly comply with its fiduciary dutiesduties under applicable law; provided, that, prior to furnishing information to, affording access to its properties, books and records to, or entering into discussions or negotiations with such person, IRF receives from such person an executed confidentiality agreement with terms no less favorable to IRF than those contained in the Confidentiality Agreements and IRF provides ABE with any such information that has not previously been provided that this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1ABE.

Other Negotiations. Following Between the date hereof and ------------------ until termination 11:59 p.m. (California time) on January 16, 2009,1 or such earlier time and date as Exar and the Company mutually agree to discontinue discussions of this Agreement pursuant the Transaction (the “Expiration Time”), except to Section 9.1the extent that the Company has received a Superior Proposal (as defined below), RTI will not (and it will not permit neither the Company nor any of its officers, directors, employees, agents and Affiliates on its behalf to) affiliates will take any action to solicit, initiate, seek, or encourage or support any inquiry, proposal or offer from, or furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than Mpathdiscussions with Exar) regarding any acquisition of RTIthe Company, any merger or consolidation with or involving RTIthe Company, or any acquisition of any material portion of the stock or assets of RTI, or the Company. The Company agrees that any acquisition of any capital stock of RTI, or any material license of RTI Proprietary Rights (any such negotiations in progress as of the foregoing being referred date hereof will be terminated or suspended during such period. The Company will promptly, and in any event within 24 hours, notify Exar regarding any contact by any third party regarding any offer, proposal or inquiry (including any request for access to the Company’s non-public information) regarding any such acquisition or financing of the Company. Except to the extent that the Company has received a Superior Proposal, in this Agreement as an "Acquisition Transaction") no event will the Company accept or enter into an agreement concerning any Acquisition Transaction with any party other than Mpath. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, RTI shall (i) notify Mpath immediately (orally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party transaction prior to the Expiration Time. The Company represents and warrants that it has the legal right to terminate or suspend any such pending negotiations and agrees to indemnify Exar, its representatives and agents from and against any claims by any party to such negotiations based upon or arising out of RTI's obligations under the discussion or any consummation of the Transaction as contemplated by this Agreement letter agreement. The Expiration Time shall automatically be extended by 14 days until 11:59 p.m. (without any reference California time) on January 28, 2009 if prior to Mpath). Notwithstanding 11:59 p.m. (California time) on January 16, 2009 (a) Exar has not ceased to negotiate with hi/fn the foregoing, nothing proposed Transaction nor has expressly stated that it has reduced the Offer Price set out in this Section 5.6 shall be construed letter, (b) Exar has not expressly conveyed in writing to restrict the ability of Company or its representatives Exar’s determination not to proceed with such negotiations or (c) in the RTI Board of Directors event the Company has unilaterally ceased to take such actions in connection with any proposed Acquisition Transactions that such Board reasonably determines actively negotiate the Transaction in good faith with Exar, Exar has delivered written notice to be required the Company that Exar desires to permit it to discharge properly its fiduciary duties, provided that this qualification shall in no way affect the obligations -------- of RTI and the RTI Board of Directors pursuant to Section 5.1continue such negotiations.

Other Negotiations. Following the date hereof and until ------------------ until termination of this Agreement pursuant to Section 9.1, RTI Target will not (and it will not permit any of its officers, directors, employees, representatives (including, without limitation, accountants, attorneys, investment bankers or investors) agents and Affiliates on its behalf directly or indirectly through another person to) take any action to solicit, initiate, seek, encourage or support or take any other action designed to facilitate any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than MpathAcquiror) regarding any acquisition of RTITarget, any merger or consolidation with or involving RTITarget, or any acquisition of any material portion of the stock or assets of RTI, or any acquisition of any capital stock of RTI, Target or any material license of RTI Target Proprietary Rights (any of the foregoing being referred to in this Agreement as an "Acquisition Transaction") or enter into an agreement concerning any Acquisition Transaction with any party other than MpathAcquiror. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, RTI Target receives from a third party any offer or indication of interest regarding any Acquisition TransactionTransaction (an "Acquisition Proposal"), or any request for information regarding any Acquisition Transaction, RTI Target shall (i) notify Mpath Acquiror immediately (orally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (ii) notify such third party of RTITarget's obligations under this Agreement (without any reference to Mpath)Agreement. Notwithstanding the foregoingimmediately preceding sentence, nothing in this Section 5.6 if an unsolicited Acquisition Proposal, or an unsolicited written expression of interest that can reasonably be expected to lead to an Acquisition Proposal, shall be construed to restrict received by the ability of the RTI Board of Directors of Target, then, to take such actions the extent the Board of Directors of Target believes in connection good faith (after consultation with any proposed Acquisition Transactions its financial advisors) that such Acquisition Proposal would, if consummated, result in a transaction more favorable to Target's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal") and the Board reasonably of Directors of Target determines in good faith to be required to permit after consultation with outside legal counsel that it to discharge properly its fiduciary duties, provided that this qualification shall in no way affect is necessary for the obligations -------- of RTI and the RTI Board of Directors of Target to comply with its fiduciary duties to stockholders under applicable law, Target may furnish in connection therewith information and take such other actions as are consistent with the fiduciary obligations of Target's Board of Directors, and such actions shall not be considered a breach of this Section 5.6 or any other provisions of this Agreement; provided, however, that Target shall not, and shall not permit any of its officers, directors, employees or other representatives to agree to or endorse any Acquisition Proposal unless Target shall have terminated this Agreement pursuant to Section 5.19.1(g) and paid Acquiror all amounts payable to Acquiror pursuant to Section 9.3(d). Target will keep Acquiror fully informed of the status and details of any such Acquisition Proposal.