Common use of Alternative Proposals Clause in Contracts

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate or solicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 6.16 shall prohibit the Board of Directors of the Company from (i) furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide offer or proposal with respect to an Alternative Proposal, if, and only to the extent that (A) the Board of Directors determines in good faith, after advice of its outside counsel, that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require the Company to identify such Person); and (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required under applicable law. Nothing in this Section 6.16 shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of any party under this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it Neither the Company nor any of its Subsidiaries shall, and it they shall direct and use its best efforts to cause its their officers, directors, employees, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries) not toto initiate, initiate solicit, or solicitknowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage participate in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or otherwise facilitate any such negotiations effort or discussions are sought attempt to be initiated make or continued with, itimplement an Alternative Proposal; provided, however, that nothing contained in this Section 6.16 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Shareholder Approval (the “Company Applicable Period”), participating in discussions or negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of the Company from (i) furnishing information toafter consultation with their financial advisors, or entering into discussions or negotiations with, any Person that makes an unsolicited a bona fide offer written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) such Alternative Proposal was not initiated, solicited or proposal knowingly encouraged by the Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company has complied with respect to an Alternative Proposalits obligations under this Section 5.1, if, and only to the extent that (Ay) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faith that the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors of the Company to shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company’s shareholders, if the Board of Directors of the Company determines in good faith, after advice of its consultation with outside legal counsel, that the failure to disclose such action is required for information would result in a breach of the fiduciary duty of the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require of the Company to identify such Person); the shareholders of the Company under applicable Law. Any actions permitted under clauses (i) and (ii) to above, and taken in compliance with the extent 35 41 applicableforegoing, taking and disclosing to the Company's stockholders shall not be deemed a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required under applicable law. Nothing in this Section 6.16 shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term breach of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation covenant or agreement of any such party under contained in this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it Neither the Company nor any of its Subsidiaries shall, and it they shall direct and use its best efforts to cause its their officers, directors, employees, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries) not toto initiate, initiate solicit, or solicitknowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage participate in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or otherwise facilitate any such negotiations effort or discussions are sought attempt to be initiated make or continued with, itimplement an Alternative Proposal; provided, however, that nothing contained in this Section 6.16 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Stockholder Approval (the "Company Applicable Period"), participating in discussions or negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of the Company from (i) furnishing information toafter consultation with their financial advisors, or entering into discussions or negotiations with, any Person that makes an unsolicited a bona fide offer written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) such Alternative Proposal was not initiated, solicited or proposal knowingly encouraged by the Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company has complied with respect to an Alternative Proposalits obligations under this Section 5.1, if, and only to the extent that (Ay) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faithfaith that the failure to so participate in discussions or negotiations, after advice provide confidential information or data or afford access would result in a breach of its outside counsel, that such action is required for the fiduciary duty of the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require of the Company to identify stockholders of the Company under applicable Law and (z) a copy of all the information provided to such Person); and Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders, if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to disclose such information would result in a breach of the fiduciary duty of the Board of Directors of the Company to the stockholders as may be required of the Company under applicable lawLaw. Nothing Any actions permitted under clauses (i) and (ii) above, and taken in this Section 6.16 compliance with the foregoing, shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term not be deemed a breach of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation covenant or agreement of any such party under contained in this Agreement.

Alternative Proposals. Prior to The Company agrees (a) that, between the earlier to occur of the termination of this Agreement date hereof and the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate initiate, solicit or solicitencourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of or any equity securities of, the Company and or any of its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative ProposalALTERNATIVE PROPOSAL") or engage in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) 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 of the foregoing, and it will take the necessary steps to inform such parties of the obligations undertaken in this SECTION 6.1; and (c) that it will notify Parent Purchaser immediately of the identity of the potential acquirer and the terms of such Person's or entity's proposal if any such inquiries or proposals are received by, any such information is received requested from, or any such negotiations or discussions are sought to be initiated or continued with, itthe Company; provided, however, that nothing contained in this Section 6.16 SECTION 6.1 shall prohibit the Board of Directors Company or its Subsidiaries, upon approval of the Company Special Committee, from (i) prior to the acceptance for payment of shares of Common Stock by Purchaser pursuant to the Offer, furnishing information to, or entering into discussions or negotiations with, any Person or entity that makes an unsolicited bona fide offer proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of substantially all of the assets of the Company, a business combination or proposal with respect to an Alternative Proposalother similar transaction, if, and only to the extent that that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their agents in violation of Directors this SECTION 6.1, (B) such proposal is not subject to a financing condition and involves consideration that provides a higher value per share than the Merger Consideration, (C) the Company Board, or the Company's directors constituting the Special Committee, determines in good faith, after faith based on the advice of its outside counsel, counsel that the failure to take such action is required for the Board of Directors to comply would be inconsistent with its fiduciary duties to stockholders imposed by lawLaw, and (BD) prior to furnishing such information to, or entering into discussions or negotiations with, such PersonPerson or entity, the Company provides written notice to Parent Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, a such Person or entity. The Company shall keep Purchaser informed of the status of any such discussions or negotiations (provided nothing herein shall require including the Company to identify identity of such Person); Person or entity and (iithe terms of any proposal) and, to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position shall comply with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or Rule 14e-2(a) promulgated under the Exchange Act and making such disclosure with regard to the Company's stockholders as may be required under applicable lawan Alternative Proposal. Nothing in this Section 6.16 SECTION 6.1 shall (x) permit any party the Company to terminate this Agreement (except as specifically provided in Section 10.1 ARTICLE 8 hereof), (y) permit any party the Company to enter into any agreement for with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of any party the Company under this Agreement. Notwithstanding anything to the contrary in this SECTION 6.1, Purchaser has advised the Company Board that it has no intention of selling the Purchaser Shares or the Shares acquired by Purchaser in the Offer pursuant to such an Alternative Proposal.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company OPC agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use its best reasonable efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate initiate, solicit or solicitencourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets or any equity securities of, OPC or any of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, Significant Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) 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 of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (c) that it will notify Parent USPI immediately if any such inquiries or proposals are received by, any such information is received requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 6.16 7.1 shall prohibit the Board of Directors of the Company OPC from (i) furnishing information to, to or entering into discussions or negotiations with, any Person person or entity that makes an unsolicited bona fide offer proposal to acquire OPC pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or proposal with respect to an Alternative Proposalother similar transaction, if, and only to the extent that that, (Ai) the Board of Directors of OPC determines in good faith, after advice of its outside counsel, faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such Personperson or entity, the Company OPC provides written notice to Parent USPI to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require the Company to identify such Person); person or entity, and (iiiii) subject to any confidentiality agreement with such person or entity (which OPC determined in good faith was required to be executed in order for its Board of Directors to comply with fiduciary duties to stockholders imposed by law), OPC keeps USPI informed of the extent 35 41 applicable, taking and disclosing to status (not the Company's stockholders a position with regard to a tender terms) of any such discussions or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required under applicable lawnegotiations. Nothing in this Section 6.16 7.1 shall (x) permit any party OPC to terminate this Agreement (except as specifically provided in Section 10.1 Article 9 hereof), (y) permit any party OPC to enter into any agreement for with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party OPC shall not enter into any agreement with any Person person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of any party OPC under this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it Neither the Company nor any --------------------- of its Subsidiaries shall, and it they shall direct and use its best efforts to cause its their officers, directors, employees, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries) not toto initiate, initiate solicit, or solicitknowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage participate in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or otherwise facilitate any such negotiations effort or discussions are sought attempt to be initiated make or continued with, itimplement an Alternative Proposal; provided, however, that nothing contained in this Section 6.16 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Shareholder Approval (the "Company Applicable Period"), participating in discussions or ------------------------- negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of the Company from (i) furnishing information toafter consultation with their financial advisors, or entering into discussions or negotiations with, any Person that makes an unsolicited a bona fide offer written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: -------- ---- (w) such Alternative Proposal was not initiated, solicited or proposal knowingly encouraged by the Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company has complied with respect to an Alternative Proposalits obligations under this Section 5.1, if, and only to the extent that (Ay) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faithfaith that the failure to so participate in discussions or negotiations, after advice provide confidential information or data or afford access would result in a breach of its outside counsel, that such action is required for the fiduciary duty of the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require of the Company to identify shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person); and Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required shareholders, if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to disclose such information would result in a breach of the fiduciary duty of the Board of Directors of the Company to the shareholders of the Company under applicable lawLaw. Nothing Any actions permitted under clauses (i) and (ii) above, and taken in this Section 6.16 compliance with the foregoing, shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term not be deemed a breach of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation covenant or agreement of any such party under contained in this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company --------------------- agrees (a) that neither it nor any of its Subsidiaries subsidiaries shall, and nor shall it shall direct and use or any of its best efforts to cause its subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, accountant or attorney or accountant retained by it or any of its Subsidiariessubsidiaries) not to, initiate initiate, solicit or solicitencourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to for a merger, acquisition, consolidation merger or similar transaction involvingother business combination involving the Company or for the acquisition of, or any purchase the acquisition of (i) a controlling equity interest in, or all or any significant a substantial portion of the assets of of, the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations -------------------- concerning, or provide any confidential information or data to, or have any discussions with, any Person person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal, other than as contemplated by this Agreement; and (b) that it will notify Parent SmarTalk immediately if any such inquiries or proposals are received by, any such information is received requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing -------- ------- contained in this Section 6.16 6.4 shall prohibit the Board of Directors of the Company from (i) furnishing information to, to or entering into discussions or negotiations with, any Person person or entity that makes an unsolicited bona fide offer or proposal with respect to an Alternative Proposal, if, and only to the extent that that, (A) the Board of Directors of the Company, based upon the written advice of outside counsel, determines in good faith, after advice of its outside counsel, faith by a majority vote that such action is required appropriate for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawlaw and such proposal is, in the written advice of Xxxxxxx, Baring & Co., Incorporated, more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Personperson or entity, the Company provides written notice to Parent the SmarTalk to the effect that it is furnishing information to, or entering into discussions discussion or negotiations with, a Person such person or entity, and (provided nothing herein shall require C) the Company keeps SmarTalk informed of the status and all material information with respect to identify any such Person)discussions or negotiations; and (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position complying with regard to a tender or exchange offer contemplated by Rules 14d-9 or Rule 14e-2 or promulgated under the Exchange Act and making such disclosure with regard to the Company's stockholders as may be required under applicable lawan Alternative Proposal. Nothing in this Section 6.16 section 6.4 shall (x) permit any party the Company to terminate this Agreement (except as specifically provided in Section 10.1 Article 10 hereof), (y) permit any party the Company to enter into any an agreement for with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during for as long as this Agreement remains in effect, the term of this Agreement, no party Company shall not enter into any agreement with any Person person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)Proposal), or (z) affect any other obligation of any party the Company under this agreement. From and after the execution of this Agreement, the Company shall immediately advise SmarTalk in writing of the receipt, directly or indirectly, of any inquiries or proposals relating to an Alternative Proposal and furnish to SmarTalk either a copy of any such proposal or a written summary of any such proposal.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it Neither the Company nor any of its Subsidiaries shall, and it they shall direct and use its best efforts to cause its their officers, directors, employees, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries) not toto initiate, initiate solicit, or solicitknowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"defined below) or engage participate in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or its Subsidiaries to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or otherwise facilitate any such negotiations effort or discussions are sought attempt to be initiated make or continued with, itimplement an Alternative Proposal; provided, however, that nothing contained in this Section 6.16 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Shareholder Approval (the "Company Applicable Period"), participating in discussions or negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of the Board of Directors of the Company from (i) furnishing information toafter consultation with their financial advisors, or entering into discussions or negotiations with, any Person that makes an unsolicited a bona fide offer written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) such Alternative Proposal was not initiated, solicited or proposal knowingly encouraged by the Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company has complied with respect to an Alternative Proposalits obligations under this Section 5.1, if, and only to the extent that (Ay) the Board of Directors of the Company, after consultation with outside legal counsel, determines in good faithfaith that the failure to so participate in discussions or negotiations, after advice provide confidential information or data or afford access would result in a breach of its outside counsel, that such action is required for the fiduciary duty of the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require of the Company to identify shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person); and Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required shareholders, if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to disclose such information would result in a breach of the fiduciary duty of the Board of Directors of the Company to the shareholders of the Company under applicable lawLaw. Nothing Any actions permitted under clauses (i) and (ii) above, and taken in this Section 6.16 compliance with the foregoing, shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term not be deemed a breach of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation covenant or agreement of any such party under contained in this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate or solicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 6.16 shall prohibit the Board of Directors of the Company from (i) furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide offer or proposal with respect to an Alternative Proposal, if, and only to the extent that (A) the Board of Directors determines in good faith, after advice of its outside counsel, that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require the Company to identify such Person); and (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or 14e-2 or promulgated under the Exchange Act and making such disclosure to the Company's stockholders as may be required under applicable law. Nothing in this Section 6.16 shall (x) permit any party to terminate this Agreement (except as specifically provided in Section 10.1 hereof), (y) permit any party to enter into any agreement for an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any Person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of any party under this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall direct and use its best efforts to cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate or solicitwill not, directly or indirectly, through any inquiries officer, director, agent or otherwise, (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the making Purchaser) relating to the disposition of the assets or implementation securities of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involvingthe Company, or any purchase part thereof (other than sales of (iinventory in the ordinary course) all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole; or (ii) 25% participate in any discussions or more negotiations regarding, or furnish any person with information with respect to, the disposition of the outstanding voting power assets or any securities of the capital stock of the Company, Company or any part thereof (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and (b) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is received from, or any such negotiations or discussions are sought to be initiated or continued with, it); provided, however, that nothing contained in this Section 6.16 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to, to or entering into discussions or negotiations with, any Person person or entity that makes an unsolicited unsolicited, bona fide offer Alternative Proposal or proposal with respect delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith, after advice of its outside counsel, faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Personperson or entity, the Company provides written notice to Parent the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person such person or entity, and (provided nothing herein shall require C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to identify any such Person)discussions or negotiations; and (ii) to the extent 35 41 applicable, taking and disclosing to the Company's stockholders a position complying with regard to a tender or exchange offer contemplated by Rules 14d-9 or Rule 14e-2 or promulgated under the Exchange Act and making such disclosure with regard to the Company's stockholders as may be required under applicable lawan Alternative Proposal. Nothing in this Section 6.16 5.1 shall (xA) permit any party the Company to terminate this Agreement (except as specifically provided in Section 10.1 Article 7 hereof), (yB) permit any party the Company to enter into any agreement for with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during for as long as this Agreement remains in effect, the term of this Agreement, no party Company shall not enter into any agreement with any Person person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (zC) affect any other obligation of any party the Company under this Agreement.

Alternative Proposals. Prior to the earlier to occur of the termination of this Agreement and the Effective Time, the Company agrees (a) that neither it nor any Upon execution and delivery of this Agreement, the Company, its Subsidiaries shall, affiliates and it shall direct and use its best efforts to cause its their respective officers, directors, employees, representatives and agents and representatives (includingshall immediately cease any existing discussions or negotiations, without limitationif any, conducted with any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate or solicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) parties heretofore with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase acquisition of (i) all or any significant material portion of the assets of of, or any equity interest in, the Company and its Subsidiaries, taken as a whole; or (ii) 25% or more of the outstanding voting power of the capital stock of any business combination with the Company, (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Alternative Proposal; and . (b) Prior to the Closing Date, the Company may, solely in response to unsolicited requests therefor, furnish non-public information regarding itself to any corporation, partnership, person or other entity or group in respect of, and may participate in discussions and negotiate with such entity or group concerning, a business combination, merger, sale of material assets, sale of shares of capital stock or similar transaction involving the Company (a "TRANSACTION"), PROVIDED that it will notify Parent immediately if any (i) such inquiries entity or proposals are received by, any such information is received from, or any such negotiations or discussions are sought group has submitted a written proposal to be initiated or continued with, it; provided, however, that nothing contained in this Section 6.16 shall prohibit the Board of Directors of the Company from relating to any such Transaction (an "ALTERNATIVE PROPOSAL"), (ii) the entity or group enters into confidentiality agreements with the Company with respect to such non-public information, and (iii) the Board of Directors of the Company ("COMPANY BOARD"), by a majority vote, determines in its good faith judgment, based as to legal matters on the advice of legal counsel, that failing to take such action would constitute a breach of the Company Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Parent and Merger Sub immediately after receipt thereof, unless prohibited by the terms of such proposal. (c) Neither the Company nor any of its affiliates, nor any of such persons' respective officers, directors, employees, representatives or agents, shall, directly or indirectly (i) furnishing information toencourage, solicit, participate in or entering into initiate discussions or negotiations with, or provide any Person that makes information to, any corporation, partnership, person or other entity or group (other than Parent and Merger Sub, any affiliate or associate of Parent and Merger Sub or any designees of Parent and Merger Sub) concerning any Transaction, or (ii) authorize, propose or announce an unsolicited bona fide offer intention to authorize or proposal with respect to propose any Transaction (other than the Merger), unless and until the Company has received an Alternative ProposalProposal in writing and the Company Board, ifby majority vote, and only has determined in its good faith judgment, based as to legal matters on the extent that (A) the Board of Directors determines in good faith, after advice of its outside legal counsel, that failing to take such action is required for the Board would constitute a breach of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect Board's fiduciary duty; PROVIDED, HOWEVER, that it is furnishing information to, or entering into discussions or negotiations with, a Person (provided nothing herein shall require prevent the Company to identify such Person); and (ii) to the extent 35 41 applicableBoard from taking, taking and disclosing to the Company's stockholders stockholders, a position with regard to a tender or exchange offer contemplated by Rules 14d-9 or and 14e-2 or promulgated under the Exchange Act and making with regard to any tender offers; PROVIDED, FURTHER, that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with any such disclosure tender offer unless the Company Board by a majority vote determines in its good faith judgment, based as to legal matters on the Companyadvice of legal counsel, that failing to take such action would constitute a breach of the Company Board's stockholders as may be required under applicable lawfiduciary duty. (d) Nothing in this Section 6.16 5.1 shall (xi) permit any party the Company to terminate this Agreement (except as specifically provided in Section 10.1 Article 7 hereof), (yii) permit any party the Company to enter into any agreement for an Alternative Proposal with respect to a Transaction during the term of this Agreement (it being agreed that during the term of this Agreement, no party the Company shall not enter into any agreement with any Person person that provides for, or in any way facilitates, an Alternative Proposal (a Transaction, other than a confidentiality agreement in customary form)), or (ziii) affect any other obligation of any party the Company under this Agreement.