Common use of No Solicitation Clause in Contracts

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.

No Solicitation. (a) The From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company shall notnot directly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee subsidiary of the Company or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into, continue into any letter of intent or similar document or any Contract contemplating or otherwise participate in any discussions or negotiations regarding, or furnish relating to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the Stockholder Approvalapproval of this Agreement by the Required Company Shareholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal based upon the advice of its outside legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of the Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to the Company's shareholders under applicable law, (as defined below3) prior to furnishing any such nonpublic information to, or constitutes entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or is reasonably likely to lead to a Superior Proposal (as defined below)enter into discussions with, such Person, and which Takeover Proposal was unsolicited the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and did disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not otherwise result from been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.024.3 by the Company. In addition to the foregoing, and subject the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to compliance with Section 4.02(c) consider a Superior Offer and (d), ii) not recommend a Superior Offer to its shareholders for a period of not less than the greater of two (x2) furnish information with respect to the Company and its subsidiaries to the person making business days or forty-eight (48) hours after Parent's receipt of a copy of such Takeover Proposal Superior Offer (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (ySection 4.3(b) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalbelow).

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company Subsidiaries or any of its subsidiaries or their respective officers, directors, affiliates or employees or any investment banker, attorney, accountant advisor or other advisor agent or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, (i) solicit, initiate or initiate, seek, entertain, encourage, or take any other action knowingly to facilitate, support or induce the making, submission or announcement of any Takeover Proposal (as defined below) or Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage or participate in each case discussions with any Person with respect to any Acquisition Proposal, except as necessary to ascertain the terms of and understand any Acquisition Proposal and to decline to engage or participate in such discussions by referring to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal, except as specifically provided in Section 5.2(c), or (v) enter into any letter of intent or any other than a Takeover Proposal made by ParentContract contemplating or otherwise relating to any Acquisition Proposal; provided, however, that at this Section 5.3 shall not prohibit Company from engaging in discussions or negotiations regarding or furnishing information to the party making an unsolicited, written, bona fide Acquisition Proposal so long as, and only to the extent that, (A) Company’s Board of Directors in good faith after consultation with its outside financial and legal advisors, concludes that such Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal, (B) neither Company nor any time prior to obtaining representative of Company or the Stockholder ApprovalCompany Subsidiaries acting under its authority shall have violated any of the restrictions set forth in this Section 5.3, (C) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside financial and legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to Company’s stockholders under applicable Legal Requirements, (as defined belowD) at least two business days prior to entering into discussions or constitutes negotiations (other than preliminary discussions permitted above) with, or is reasonably likely furnishing information to, such party, Company gives Parent written notice of the identity of such Person, entity or group and all of the material terms and conditions of such Acquisition Proposal and of Company’s intention to lead take action with respect to a Superior Proposal (as defined below)such Person, entity or group, and which Takeover Proposal was unsolicited Company receives from such Person or group an executed confidentiality agreement containing terms no less favorable to Company as the Confidentiality Agreement, (E) Company gives Parent at least two business days advance notice of its intent to furnish such nonpublic information or enter into such discussions, and did (F) contemporaneously with furnishing any such information to such Person or group, Company furnishes such information to Parent (to the extent such information has not otherwise result from been previously furnished by Company to Parent). Company shall, and shall cause its respective officers, directors, controlled affiliates or employees or any investment banker, attorney, advisor or other agent or representative retained by any of them to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.3 by any officer, director or controlled affiliate of Company or any Company Subsidiaries or any investment banker, attorney, advisor or other agent or representative of Company or any Company Subsidiaries shall be deemed to be a breach of this Section 4.025.3 by Company. In addition to the obligations of Company set forth in this Section 5.3, Company shall, as promptly as practicable, and subject in any event within 24 hours, advise Parent orally and in writing of any Acquisition Proposal, request for information which Company reasonably believes would lead to compliance with Section 4.02(c) and (d), (x) furnish information an Acquisition Proposal or any inquiry with respect to or which could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, the identity of the Person or group making any such Acquisition Proposal, request or inquiry and copies of all written materials sent or provided to Company by or on behalf of any Person or group or provided to such Person or group by or on behalf of Company after the date of this Agreement. Company shall keep Parent informed in all material respects of the status and its subsidiaries details (including material amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry. In addition to the person making foregoing, Company shall provide Parent with at least two business days prior written notice of a meeting of Company’s Board of Directors at which Company’s Board of Directors is reasonably expected to consider an Acquisition Proposal or recommend a Superior Proposal to its stockholders and, together with such Takeover Proposal (and its representatives) pursuant notice, a copy of the documentation relating to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Superior Proposal.

No Solicitation. (a) The Company shall not, nor and shall it not permit or cause any of its subsidiaries to, or nor shall it authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Representatives to, directly or indirectlyindirectly (except as otherwise contemplated by this Section 6.07), (i) initiate, solicit, initiate encourage (including by way of furnishing non-public information or encourageassistance), induce or take any other action knowingly to facilitatefacilitate any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations regardingconcerning, or furnish to provide any person any confidential or other nonpublic information with respect or data to, or otherwise cooperate in have any way discussions with, any Takeover person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) withdraw or modify in each case other than a Takeover Proposal made any manner adverse to Purchaser, the approval or recommendation by Parentthe Board of the Offer, this Agreement, or the Merger, or (iv) cause the Company to enter into an Acquisition Agreement or approve or recommend any Acquisition Proposal; provided, however, that at any time prior to obtaining the Stockholder Approvalacceptance for payment of the Shares pursuant to the Offer (or the approval by the stockholders, the Board if a Cash Merger pursuant to Article II of Directors of this Agreement is utilized), the Company may, and may authorize and permit the Company Representatives to, furnish or cause to be furnished confidential or other nonpublic information and may participate in response such negotiations and discussions or take any other action otherwise prohibited by this Section 6.07(a) with any person (unless such other action is subject to the restrictions of Section 6.07(b), in which case such other action shall only be permitted in accordance with such restrictions) that, after the date of this Agreement, makes a bona fide written Takeover unsolicited proposal to enter into a business combination with the Company pursuant to an Acquisition Proposal that such the Board of Directors in good faith reasonably determines (after having consulted with outside legal counsel and its independent financial advisor) is likely to result in a Superior Acquisition Proposal, but only if and to the extent that (i) the Board determines in good faith (after having consulted with outside legal counsel) that such action is necessary in order for its directors to comply with their fiduciary duties under applicable law, (ii) prior to taking such action, the Company (A) provides advance written notice to the Parent that it has received a request for nonpublic information (including a summary of the material terms of the Acquisition Proposal) and that it intends to take such action and (B) receives from such person an executed confidentiality agreement in reasonably likely customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, (iii) prior to result in an Adverse Recommendation Change furnishing any nonpublic information to any such person, the Company furnishes such nonpublic information to the Parent (as defined below) or constitutes or is reasonably likely to lead the extent that such nonpublic information has not been previously furnished by the Company to a Superior Proposal (as defined belowthe Parent), and which Takeover Proposal was unsolicited and did not otherwise result from a breach (iv) neither the Company nor any of its subsidiaries nor any of the Company Representatives shall have violated any of the provisions set forth in this Section 4.02, 6.07. The Company shall keep the Purchaser promptly and subject to compliance with Section 4.02(c) and (d), (x) furnish information reasonably informed with respect to the status of any such request and any modifications thereto. The Company shall immediately cease and its subsidiaries cause to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementbe terminated any existing activities, provided that all such information is provided on a prior or substantially concurrent basis to Parentdiscussions, and (y) participate in discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to any of the foregoing. If not previously requested, the Company also will promptly request each person that has executed prior to the date of this Agreement a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or destroy all confidential or other nonpublic information furnished to such person by the Company or on the Company’s behalf prior to the date of this Agreement. Neither the Company nor any of its subsidiaries shall terminate, amend, modify, or waive any provision of any confidentiality or standstill agreement to which it is a party and shall use its commercially reasonable efforts to enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including, but not limited to, by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. Notwithstanding the foregoing, nothing contained in this Section 6.07 shall prevent the Company from complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal or from making any disclosure to the Company’s stockholders if the Board determines in good faith (after having consulted with outside legal counsel) that such Takeover Proposal (and its representatives) regarding such Takeover Proposaldisclosure is required by law or necessary in order for the Company’s directors to comply with their fiduciary duties under applicable law.

No Solicitation. (a) The From the date of this Agreement until the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, nor shall agrees that it will not and will not permit any of its subsidiaries toSubsidiaries, or authorize any of its or permit their officers, directors, employees, representatives, agents, or Affiliates, including, without limitation, any directorinvestment banker, officer attorney or employee of accountant retained by the Company or any of its subsidiaries or any investment bankerSubsidiaries (collectively, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries “Representatives”) to, directly or indirectly, (i) initiate, solicit, initiate encourage or encourageotherwise facilitate (including by way of furnishing information or otherwise), any inquiries or the making of any proposal or offer that constitutes, or take any other action knowingly may reasonably be expected to facilitate, any Takeover lead to an Acquisition Proposal (as defined below) ), or (ii) enter into, into or maintain or continue or otherwise participate in any discussions or negotiations regardingnegotiate with any Person in furtherance of such inquiries or to obtain an Acquisition Proposal, or furnish (iii) agree to, approve, recommend, or endorse any Acquisition Proposal, or resolve, agree or publicly propose to take any such action and the Company shall promptly notify Acquiror of any such inquiries and proposals received by the Company or any of its Subsidiaries or Representatives, relating to any person any information with respect toof such matters, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Company Requisite Stockholder ApprovalVote, the Company Board of Directors of (and the Company Special Committee) may, in response to a bona fide written Takeover Acquisition Proposal that such the Company Board (upon the recommendation of Directors determines the Company Special Committee) determines, in good faith is faith, after consultation with outside counsel and financial advisors, constitutes, or could reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely be expected to lead to to, a Superior Proposal (as defined below)Proposal, and which Takeover Acquisition Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d5.3(a), (x) provide access or furnish information with respect to the Company and its subsidiaries Subsidiaries to the person Person making such Takeover Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, agreement and (y) participate engage in discussions or negotiations with the person Person making such Takeover Acquisition Proposal (and its representatives) regarding such Takeover Acquisition Proposal; provided further, however, that, subject to the right of the Company to withhold information where such disclosure would violate or prejudice the rights of its or its Subsidiaries’ clients, jeopardize the attorney-client privilege of the Company or its Subsidiaries or contravene any law or binding agreement entered into prior to the date of this Agreement, the Company shall promptly provide to Acquiror any non-public information that is provided to the Person making such Acquisition Proposal or its representatives which was not previously provided to Acquiror. The Company shall also, within one Business Day, notify Acquiror of the receipt of any Acquisition Proposal and the material terms and conditions thereof. Further, the Company shall promptly keep Acquiror advised on a substantially current basis of any developments relating to any such Acquisition Proposal.

No Solicitation. Seller will not (and it will use its best efforts to assure that its officers, directors, employees, agents and affiliates do not on its behalf) (a) The Company shall nottake any action to solicit, nor shall it permit any of its subsidiaries toinitiate, seek, or authorize affirmatively support any inquiry, proposal or permit offer from, any director* Certain information on this page has been omitted and filed separately with the SEC. Confidential treatment has been requested with respect to the omitted portions. corporation, officer partnership, person or employee other entity or group (other than Buyer) relating to any acquisition of the Company Business or any of its subsidiaries or the Assets, other than the marketing, sale and distribution of Product Inventory and use of Raw Materials in the ordinary course consistent with past practices (any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) such proposed transaction being a “Third Party Acquisition”); or (iib) enter into, continue or otherwise participate in any discussions or negotiations regardingwith, or furnish provide any non-public information to, any corporation, partnership, person or other entity or group (other than Buyer) relating to any person proposed Third Party Acquisition. Seller shall immediately terminate any information with respect tosuch negotiations in progress as of the Effective Date. In no event will Seller accept or enter into an agreement concerning any such Third Party Acquisition prior to the termination of the Agreement pursuant to Article 12. Notwithstanding this provision, or otherwise cooperate nothing herein shall be deemed to in any way withrestrict or limit the right of Seller to engage in discussions, negotiations, furnishing of information or any Takeover Proposal, other activities relating to or in each case support of transactions involving the acquisition or sale of Seller and/or any other product lines or businesses of Seller other than a Takeover Proposal made by Parent; providedthe Business or the Assets, however, that at any time prior to obtaining so long as this Agreement shall remain in full force and effect and shall remain binding on the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalparties hereto.

No Solicitation. (a) The Company DOCP shall not, nor shall it permit any of its subsidiaries toDOCP Subsidiary, or authorize or permit any director, officer or employee of the Company its or any of its subsidiaries DOCP Subsidiary officers, directors, employees, agents or representatives (including, without limitation, any investment banker, attorneyattorney or accountant) to, accountant initiate, solicit or other advisor or representative of the Company or any of its subsidiaries toencourage, directly or indirectly, (i) solicitany inquiries or the making of any proposal with respect to an Alternative Transaction, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations regardingconcerning, or furnish provide to any other person any information with respect toor data relating to it or any DOCP Subsidiary for the purposes of, or otherwise cooperate in any way withwith or assist or participate in, facilitate or encourage, any Takeover Proposalinquiries or the making of any proposal which constitutes, in each case other than or may reasonably be expected to lead to, a Takeover Proposal made by Parentproposal to seek or effect an Alternative Transaction, or agree to or endorse any Alternative Transaction; provided, however, that at any time nothing contained in this Section shall prohibit DOCP or the DOCP Board from taking and disclosing to its shareholders a position as required by Exchange Act Rule 14e-2; and provided further that, prior to obtaining acceptance for payment of any DOCP Shares pursuant to the Stockholder ApprovalOffer, the Board DOCP Board, on behalf of Directors of the Company DOCP, may, in response to a an unsolicited, bona fide written Takeover Proposal Superior Proposal, furnish information or data (including confidential information or data) relating to DOCP and participate in negotiations with a person making such unsolicited Superior Proposal, but only after such person enters into arrangements regarding confidentiality on terms at least as favorable to DOCP as the confidentiality arrangements contained herein and only in the event that such (a) the DOCP Board of Directors determines in good faith faith, on the basis of advice of independent counsel furnished prior thereto to Buyer, that such action is legally required by the fiduciary obligations of the DOCP Board and (b) DOCP advises Buyer of its intention to make such determination to do so prior thereto. DOCP shall promptly advise Buyer of, and communicate the terms of, any proposal respecting an Alternative Transaction it may receive, or any inquiries it receives which may reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely be expected to lead to a Superior Proposal (as defined below)proposal respecting an Alternative Transaction, and which Takeover Proposal was unsolicited and did not otherwise result from a breach the identity of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant proposal. Prior to a customary confidentiality agreementtaking any such action, provided that all if DOCP intends to participate in any such discussion or negotiation or provide any such information is provided on a prior or substantially concurrent basis data to Parentany such third party, it shall give reasonable notice to Buyer and shall consult, and thereafter shall continue to consult, with Buyer. Notwithstanding the foregoing, nothing in this Section 6.2 shall (ya) participate permit DOCP to enter into any agreement with respect to or to facilitate an Alternative Transaction during the term of this Agreement (it being understood that DOCP shall not enter into any agreement with any person that provides for, or in discussions any way facilitates, the development of a proposal for an Alternative Transaction, other than a confidentiality agreement in customary form in respect of a Superior Proposal as described above) or negotiations with (b) affect any other obligation of DOCP under this Agreement. "Alternative Transaction" means a transaction or series of related transactions resulting in (a) any change of control of DOCP, (b) any merger or consolidation of DOCP in which another person acquires 25% or more of the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.aggregate voting power of all voting securities of it or the surviving corporation, as the

No Solicitation. (a) The Company agrees that, during the term of this Agreement, it shall not, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries toor its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to: (i) solicit, initiate initiate, encourage or encouragefacilitate, or take any other action knowingly to facilitatefurnish or disclose non-public information in furtherance of, any Takeover Proposal inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving Company, or acquisition of 10% or more of the capital stock or any material portion of the assets (except as defined belowset forth in Section 5.3(d) to the Company Disclosure Schedule and except for acquisition of assets in the ordinary course of business consistent with past practice) of Company, or any combination of the foregoing ("Company Competing Transaction"); (ii) enter intonegotiate, continue explore or otherwise participate engage in discussions with any discussions person (other than Parent, Subcorp or negotiations regardingtheir respective directors, or furnish officers, employees, agents and representatives) with respect to any person Company Competing Transaction; or (iii) enter into any information with respect toagreement, arrangement or otherwise cooperate in understanding requiring it to abandon, terminate or fail to consummate the Merger or any way with, any Takeover Proposal, in each case other than a Takeover Proposal made transactions contemplated by Parentthis Agreement; provided, however, that at nothing contained in this Section 5.3(d) shall prohibit the Board of Directors of Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to Company than the Confidentiality Agreement) or entering into discussions or negotiations with any time prior person or group that makes an unsolicited bona fide written proposal for a Company Competing Transaction (an "Alternative Proposal"), if, and only to obtaining the Stockholder Approvalextent that, (A) the Board of Directors of Company, based upon the written opinion of outside counsel (a copy of which shall be provided promptly to Parent), determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to shareholders imposed by law, (B) such Alternative Proposal is not conditioned on the receipt of financing, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines has reasonably concluded in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to that the person or group making such Takeover Alternative Proposal (will have adequate sources of financing to consummate such Alternative Proposal and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.such

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries todirectly or indirectly, or authorize or permit through any officer, director, officer employee, representative or employee agent of the Company or any of its subsidiaries Subsidiaries, and shall not permit any such officer, director, employee, representative or agent to, solicit or encourage the initiation of (including by way of furnishing information) any investment bankerinquiries or proposals regarding, attorneyor participate in negotiations or discussions concerning any merger, accountant sale of assets, sale of shares of capital stock (including without limitation by way of a tender offer) or other advisor or representative of similar transactions involving the Company or any Subsidiaries of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal the Company that if consummated would constitute an Alternative Transaction (as defined belowin Section 7.1) (any of the foregoing inquiries or (ii) enter intoproposals being referred to herein as an "ACQUISITION PROPOSAL"). Upon the execution of this Agreement, continue or otherwise participate in the Company shall immediately cease any discussions or negotiations regardingwith any person, entity or furnish group (other than Parent or any of its affiliates or representatives) concerning any such transaction or any Acquisition Proposal that are continuing on the date hereof and thereafter shall seek to have returned to the Company any person any confidential information with respect to, or otherwise cooperate that has been provided in any way with, any Takeover Proposal, such discussions or negotiations. Nothing in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, this section shall prevent the Board of Directors of the Company may, in response from (i) furnishing information to a bona fide written Takeover third person which has made a BONA FIDE Acquisition Proposal that such the Board of Directors reasonably determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did ) not otherwise result from a breach solicited in violation of this Section 4.02Agreement, provided that, with respect to any person that is not currently party to a confidentiality agreement with the Company, such person has executed an agreement with confidentiality, standstill and other provisions substantially similar to those then in effect between the Company and Parent, or (ii) subject to compliance with the other terms of this Section 4.02(c5.2, considering and negotiating a bona fide Acquisition Proposal that is a Superior Proposal not solicited in violation of this Agreement; PROVIDED, HOWEVER, that, as to each of clauses (i) and (dii), (x) furnish information with respect such actions occur at a time prior to the Company consummation (or, if the Offer is consummated and its subsidiaries to extended, the person making such Takeover Proposal (and its representativesinitial consummation) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, of the Offer and (y) participate the Board determines in discussions good faith (based on the advice of its financial advisor and counsel) that it is required to take such actions in order to discharge properly its fiduciary duties. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any proposal made by a third person to acquire, directly or negotiations indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the election of directors or all or substantially all the assets of the Company, if, and only if, the Board reasonably determines (after consultation with its financial advisor and counsel) (i) that the proposed transaction would be more favorable from a financial point of view to its stockholders than the Offer and the Merger and the transactions contemplated by this Agreement taking into account at the time of determination any changes to the terms of this Agreement which as of that time had been proposed by Parent and (ii) that the person or entity making such Takeover Acquisition Proposal is capable of consummating such Acquisition Proposal (based upon, among other things, the availability of financing and its representatives) regarding the degree of certainty of obtaining financing, the expectation of obtaining required regulatory approvals and the identity and background of such Takeover Proposalperson).

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company Subsidiaries or any of its subsidiaries their respective directors or officers or employees, and shall not authorize any investment banker, financial advisor, attorney, accountant or other advisor advisor, agent or representative of the Company (collectively, “Representatives”) retained by it or any of its subsidiaries Subsidiaries to and shall use its reasonable best efforts to cause such Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, knowingly encourage or take any other action designed to knowingly to facilitate, facilitate the submission of any Takeover Proposal (as defined below) or Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, regarding or furnish to any person Person (other than Parent or its Representatives or the Company’s Representatives) any confidential information with respect to, or otherwise actively cooperate in any way with, any Takeover ProposalProposal or (iii) waive, in each case terminate or modify any provision of any contractual “standstill” or similar obligation of any person other than a Takeover Proposal made by Parent; provided. Notwithstanding the foregoing or anything else in this Agreement to the contrary, however, that at any time prior to obtaining the Stockholder Shareholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such the Company Board of Directors determines in good faith (after consultation with its outside legal counsel and financial advisor) is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.024.02(a), and subject to compliance with Section 4.02(c) and (d), (xi) furnish confidential information with respect to the Company and its subsidiaries Subsidiaries to the person Person making such Takeover Proposal (and its representativesRepresentatives) pursuant to a customary confidentiality agreementagreement (which shall permit the Company to comply with the terms of Section 4.02(c)) not less restrictive to such Person than the provisions of the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided on a to Parent prior to or substantially concurrent basis with the time it is provided to Parent, such Person and (yii) participate in discussions or and negotiations with the person Person making such Takeover Proposal (and its representativesRepresentatives) regarding such Takeover Proposal.

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it not authorize or knowingly permit any of its subsidiaries to, the other Acquired Corporations or authorize or permit any director, officer or employee Representative of any of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate or initiate, encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, continue or otherwise participate (iii) engage in any discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal, (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise cooperate relating to any Acquisition Transaction, it being understood and agreed that informing any Person as to the existence of this provision in response to any way with, any Takeover unsolicited Acquisition Proposal, in each case other than proposal or inquiry shall not constitute or be deemed to be a Takeover Proposal made by Parentviolation of the foregoing; provided, however, that at any time prior to obtaining the Stockholder Approvaladoption of this Agreement by the Required Company Shareholder Vote, the Board of Directors of this Section 4.3(a) shall not prohibit the Company mayfrom furnishing nonpublic information regarding the Acquired Corporations to, entering into a confidentiality agreement with, or entering into discussions with, any Person in response to a bona fide written Takeover an unsolicited Acquisition Proposal that such the Company’s Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is would reasonably likely be expected to lead to a Superior Proposal Offer that is submitted to the Company by such Person (as defined below)and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.3, (2) the board of directors of the Company concludes in good faith, after having taken into account the written advice of its outside legal counsel, that such action is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s shareholders under applicable law, (3) at least two business days prior to furnishing any such information to, entering into a confidentiality agreement with, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, entering into a confidentiality agreement with, or enter into discussions with, such Person, and which Takeover Proposal was unsolicited the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and did disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company substantially similar to the confidentiality provisions contained in that certain letter agreement dated May 25, 2007, as amended on June 19, 2007, between the Company and Parent, and (4) prior to furnishing any such information that is material nonpublic information to such Person, the Company furnishes such material nonpublic information to Parent (to the extent such nonpublic information has not otherwise result from been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with of any of the provisions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 4.3 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company From and after the date hereof until the --------------- earlier of the Effective Time or the termination of this Agreement in accordance with its terms, Xoom shall not, nor shall it permit any of its subsidiaries Subsidiaries to, or nor shall it authorize or permit any directorofficer, officer director or employee of the Company or any of its subsidiaries of, or any investment banker, attorney, accountant attorney or other advisor or representative of the Company of, Xoom or any of its subsidiaries Subsidiaries to, directly or indirectly, (i) take any action to solicit, initiate initiate, encourage or encourage, or take knowingly facilitate any other action knowingly to facilitate, any Takeover Material Transaction Proposal (as defined below) or the submission of a Material Transaction Proposal or (ii) enter into, continue into or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way witha Material Transaction Proposal; provided that, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the affirmative vote of the holders -------- of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "Xoom Stockholder Approval" and, together with the ------------------------- Xenon 2 Stockholder Approval, the Board of Directors of the Company may"Stockholder Approvals"), in response to a an --------------------- unsolicited bona fide written Takeover Proposal Proposal, Xoom may, to the extent that such the Board ---- ---- of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such action is reasonably likely required to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance comply with Section 4.02(c) and (d)their fiduciary duties under applicable law, (xA) furnish information with respect to the Company Xoom and its subsidiaries Subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all representatives and discuss such information is provided on a prior or substantially concurrent basis to Parent, with such person and its representatives and (yB) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or any Material Transaction Proposal, the material terms and conditions of such request or Material Transaction Proposal and the identity of the person making any such request or Material Transaction Proposal, and will keep NBC fully informed on a current basis of the status and details of any such request or Material Transaction Proposal, provided that, prior to providing any information to any -------- Person or participating in negotiations with any Person, Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and cause to be terminated any existing activities, discussions and negotiations conducted heretofore with respect to any Material Transaction Proposal.

No Solicitation. (a) The Except as permitted by Section 4.4(b), Section 4.4(e) or Section 5.2, the Company shall notnot (and shall not publicly propose to), nor and shall it permit any of its subsidiaries ensure that the other Acquired Companies do not (and do not publicly propose to), or authorize or permit any director, officer or employee of and shall use reasonable best efforts to cause the Company or any of its subsidiaries or any investment banker, attorney, accountant or Company’s and the other advisor or representative of the Company or any of its subsidiaries Acquired Companies’ respective Representatives not to, directly or indirectly, : (i) solicit, initiate initiate, knowingly encourage or encourage, knowingly induce any Acquisition Proposal or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or Acquisition Inquiry; (ii) furnish or otherwise provide access to any information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) enter into, continue or engage in discussions or negotiations with or knowingly cooperate with, any Person (other than Parent, its Affiliates and its and their Representatives) with respect to any Acquisition Proposal or Acquisition Inquiry; or (iv) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or Contract constituting or otherwise participate relating to an Acquisition Transaction (other than a confidentiality agreement entered into pursuant to, and in compliance with, clause (iv)(B) of Section 4.4(b) and any related “clean team” agreement whose terms are comparable with the Clean Team Agreement, with such changes in such clean team agreement as are necessary to reflect the identity of the other Person and the nature of its business); provided, however, that nothing in this Section 4.4(a) shall prohibit the Company, any other Acquired Company or any of their respective Representatives (in the case of Representatives, to the extent they are acting at the direction of the Company or any Acquired Company) from contacting in writing any Person who, following the date of this Agreement and prior to the adoption of this Agreement by the Required Company Stockholder Vote, makes an unsolicited, bona fide written Acquisition Proposal or Acquisition Inquiry to the Company that did not result from a material breach of this Section 4.4 or Section 5.2, solely to ask such Person, and to request from such Person a written response to, a question or questions for the sole purpose of clarifying (and not for the purpose of engaging, directly or indirectly, in any discussions or negotiations regarding, ) the written terms of such Acquisition Proposal or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Inquiry; provided, howeverfurther, that at any time prior to obtaining the Stockholder Approvalsending any such written communication to such Person, the Board Company shall deliver to Parent a copy of Directors of the Company may, in response to a bona fide such written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalcommunication.

No Solicitation. (a) The From and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, the Company shall not, nor shall it permit any and each of its subsidiaries toSubsidiaries and the officers, directors, and other agents, representatives and advisors (including any investment bankers, attorneys or authorize or permit any director, officer or employee accountants) of the Company or any of its subsidiaries Subsidiaries (collectively, "Company Representatives") shall not, directly or indirectly (and the Company shall not permit any of its or its Subsidiaries' other employees to), (a) take any action to solicit, initiate, intentionally encourage, or facilitate any Takeover Proposal, or (b) subject to the terms of the immediately following sentence, engage in any discussions or negotiations with, or disclose any nonpublic information relating to the Company or any investment bankerof it Subsidiaries to, attorneyor afford access to the properties, accountant books or other advisor or representative records of the Company or any of its subsidiaries Subsidiaries to, directly any person that has advised the Company that such person may be considering making a Takeover Proposal (or indirectly, (i) solicit, initiate that the Board of Directors or encourageofficers of the Company has reason to believe is seeking to make, or take any other action knowingly to facilitatethat has made, a Takeover Proposal) (each such person, a "Competing Bidder"), or endorse, approve or recommend any Takeover Proposal or enter into any agreement (as defined belowincluding any letter of intent, preliminary agreement or similar arrangement) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, providing for any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, provided that at any time prior to obtaining the Stockholder Approval, nothing herein shall prohibit the Board of Directors of the Company may, in response from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act. If prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer (i) a bona fide unsolicited written Takeover Proposal that such shall be received by the Board of Directors of the Company, and (ii) the Board of Directors of the Company determines in good faith is reasonably likely to (after consultation with its outside financial advisor and after considering all terms and conditions of such Takeover Proposal, including the likelihood and timing of its consummation) that such Takeover Proposal would result in an Adverse Recommendation Change a transaction more favorable to the Company's stockholders from a financial point of view than the Merger as contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as defined below) or constitutes or is reasonably likely to lead to a "Superior Proposal (as defined belowProposal"), and which (iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that it is necessary in order for the Board of Directors of the Company to comply with its fiduciary duties to stockholders under applicable law, and (iv) the Company has notified Parent of such determination by the Board of Directors of the Company and has provided Parent with true and complete copies of the Takeover Proposal was unsolicited received from the Competing Bidder and did not otherwise result from the financial assumptions and projections reviewed and relied upon by the Board of Directors of the Company in determining that a breach of this Section 4.02Takeover Proposal constitutes a Superior Proposal, then Company Representatives may engage in discussions and subject to compliance negotiations with Section 4.02(c) and (d)the Competing Bidder, (x) furnish disclose nonpublic information with respect relating to the Company and its subsidiaries Subsidiaries to the Competing Bidder, afford access to the properties, books or records of the Company and its Subsidiaries to the Competing Bidder, modify or withdraw its Recommendation, recommend such Superior Proposal to the stockholders of the Company, and (subject to Section 8.3(b)) approve the entering (but not enter) into an agreement for a Superior Proposal in accordance with Section 8.1(g), subject to compliance with each of the following requirements: (X) prior to furnishing such information, engaging in such discussions or negotiations, disclosing such nonpublic information, or affording such access, the Company shall provide to Parent all documents containing or referring to non-public information of the Company that are supplied to the Competing Bidder; and (Y) the Company shall enter into a nondisclosure agreement with the Competing Bidder containing, and shall provide such non-public information subject to, terms at least as restrictive on the Competing Bidder as the confidentiality agreement contained in Section 6.4(e)-(g) is on Parent; and (Z) the Company shall provide Parent at least three (3) business days prior notice before any modification or withdrawal of its Recommendation or any recommendation of a Superior Proposal or any approval of the entering into of an agreement for a Superior Proposal in accordance with Section 8.1(g) and Section 8.3(b). The Company shall immediately notify Parent after receipt of any Takeover Proposal, any inquiry looking toward a Takeover Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any person making such that has made (or that the Company has reason to believe is considering making), a Takeover Proposal (and its representatives) pursuant such notice to a customary confidentiality agreementinclude the identity of the person or persons making such proposal, provided that all such information is provided on a prior inquiry, or substantially concurrent basis to Parentrequest), and will keep Parent fully informed of the status and details of any such proposal, inquiry, or request (yincluding all terms and conditions and modifications thereto) participate and shall provide Parent with a true and complete copy of such proposal, inquiry, or request and any amendment thereto, if it is in writing, or a written summary of the material terms thereof, if it is not in writing. The Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any persons (other than Parent) conducted heretofore with respect to a Takeover Proposal. Promptly following the person making such Takeover Proposal (signing and delivery of this Agreement the Company shall inform all employees of the Company and its representatives) regarding Subsidiaries of the actions which the Company is prohibited from taking by the first sentence of this Section 5.2 and shall direct each such Takeover Proposalemployee to refrain from taking any such action. The Company shall further inform all such employees that any violation of such direction shall be grounds for immediate termination of employment. The Company shall not be considered to be in breach of the first sentence of this Section 5.2 with respect to the acts of any employee who is not a Company Representative unless such acts were performed at the direction or with the knowledge of a Company Representative.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or the earlier termination of this Agreement in accordance with its terms, the Company shall will not, nor shall it and will not permit any of its subsidiaries Subsidiaries or its or their respective directors, officers, investment bankers, affiliates, representatives and agents to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate initiate, or encourageknowingly encourage (including by way of furnishing non-public information), or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) inquiries or proposals that constitute, or could reasonably be expected to lead to, any Company Acquisition Proposal, or (ii) engage in, or enter into, continue any negotiations or otherwise participate in discussions concerning any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Company Acquisition Proposal. Notwithstanding the foregoing, in each case other than a Takeover Proposal made by Parent; providedthe event that, howevernotwithstanding compliance with the preceding sentence, that at any time prior to obtaining the Stockholder Approval, the Board of Directors receipt of the Company maystockholder approval, in response to (x) the Company receives a bona fide written Takeover Company Acquisition Proposal that such Board the board of Directors directors of the Company determines in good faith (after consultation with its outside legal and financial advisors) is or may reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely be expected to lead to a Company Superior Proposal (as defined below), and which Takeover Proposal that was unsolicited and did not solicited by the Company or otherwise result from a breach obtained in violation of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to ParentSECTION 6.3, and (y) after the Company gives the Parent written notice of its intention to do so, the Company may participate in discussions or negotiations regarding such Company Acquisition Proposal and provide confidential information concerning the Company in order to be informed and make a determination with respect thereto. In such event, the person Company shall (i) promptly inform Parent of the material terms and conditions of such Company Acquisition Proposal, including the identity of the Person making such Takeover Proposal Company Acquisition Proposal, (ii) promptly keep Parent informed of the status including any material change to the terms of any such Company Acquisition Proposal, and its representatives(iii) promptly deliver to Parent copies of all confidential information regarding the Company delivered by the Company to any third party in connection with such Takeover Company Acquisition Proposal.. As used herein, the term "COMPANY ACQUISITION 43

No Solicitation. (a) The Company In consideration of the expenses to be incurred by each of the parties hereto in negotiating toward this Agreement and in conducting its due diligence investigation, each of the parties hereto shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party, (i) solicit, initiate or encourageinitiate, or take encourage any inquiries or proposals that constitute, or could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale or transfer of substantial assets, sale of any shares of capital stock (including without limitation by way of a tender offer), acquisition of shares of capital stock or assets, or similar transaction involving it or any of its subsidiaries, other action knowingly than the Transactions (any of the foregoing inquiries or proposals being referred to facilitatein this Agreement as an "Acquisition Proposal"), any Takeover Proposal (as defined below) or (ii) enter into, continue engage in negotiations or otherwise participate in any discussions or negotiations regardingconcerning, or furnish provide any non-public information to any person any information with respect or entity relating to, any Acquisition Proposal, or otherwise cooperate agree to or recommend any Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in this Section 4.16(a) shall prevent any way of the parties hereto or its respective Board of Directors, from (A) furnishing non-public information, or entering into discussions or negotiations, with, any Takeover Proposalperson or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity or agreeing to or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, in each case other than a Takeover Proposal made by Parent; provided, however, if and only to the extent that at any time prior to obtaining the Stockholder Approval, (1) the Board of Directors of such party believes in good faith (after consultation with its advisors) that such Acquisition Proposal is reasonably capable of being completed on the Company mayterms proposed and, after taking into account the strategic benefits anticipated to be derived from the Acquisition Proposal, would, if consummated, result in response a transaction more favorable to a bona fide written Takeover Proposal that such party over the long term than the transaction contemplated by this Agreement, and such Board of Directors determines in good faith after receipt of an opinion from outside legal counsel to the effect that such action is reasonably likely necessary for such Board of Directors to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely comply with its fiduciary duties to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) stockholders under applicable law and (d)2) prior to furnishing such non-public information to, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in entering into discussions or negotiations with, such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms no more favorable to such party than those contained in the person making such Takeover Proposal Confidentiality Agreement; or (and its representativesB) regarding such Takeover complying with rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.

No Solicitation. Each Stockholder will not (a) The Company shall notand DLJ Merchant Banking, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Inc. will not directly or indirectly, (i) solicit, initiate or encourage, or take any action that if taken by the Company would be a breach of Section 4.3(a) of the Merger Agreement (disregarding for this purpose the proviso to the first sentence of such Section 4.3(a), but subject to the last sentence of this Section 1(e)). Each Stockholder shall promptly advise Parent and Merger Sub orally and in writing of the receipt by it of any Acquisition Proposal or any inquiry from any Person other action knowingly than Parent regarding a potential acquisition of the Shares, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the Person making any such Acquisition Proposal or inquiry. Such Stockholder (or DLJ Merchant Banking, Inc.) will keep Parent and Merger Sub informed on a current basis with respect to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish material developments relating to any person such Acquisition Proposal or inquiry or any information with respect tomaterial modification or proposed modification thereto. Nothing in this Section shall restrict the activities of any individual (whether or not an affiliate of any Stockholder (or DLJ Merchant Banking, Inc.)) in his or otherwise cooperate in any way withher capacity as a director or officer of the Company. Notwithstanding the foregoing, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, if the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith that a Qualified Acquisition Proposal made by any Person or Persons is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal Proposal, each Stockholder (as defined below)and DLJ Merchant Banking, Inc.) shall be permitted to engage in discussions and negotiations with, and which Takeover Proposal was unsolicited and did not otherwise result from a breach furnish nonpublic information regarding the Acquired Corporations to, such Person or Persons if the Board of this Section 4.02Directors of the Company has concluded in good faith, and subject after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to compliance comply with Section 4.02(c) and (d), (x) furnish information with respect its fiduciary obligations to the Company Company's stockholders under applicable Legal Requirements and its subsidiaries the other requirements of the proviso to the person making such Takeover Proposal (and its representativesfirst sentence of Section 4.3(a) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with of the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalMerger Agreement have been satisfied.

No Solicitation. (a) The Neither the Company shall notnor any of its subsidiaries shall, nor shall it permit authorize any of its subsidiaries toofficers, directors, employees, agents, investment bankers, attorneys, financial advisors or authorize or permit any director, officer or employee of the Company other representatives retained by it or any of its subsidiaries or any investment banker(collectively, attorney, accountant or other advisor or representative of the "Company or any of its subsidiaries Representatives") to, directly or indirectly, (i) solicit, solicit or initiate or encourage, or take any other action knowingly to facilitatethe submission of, any Takeover Acquisition Proposal (as defined below) or in Section 4.02(c)), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate take any other action intended to facilitate any inquiries or the making of any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal or (iii) enter into any agreement with respect to, agree to, approve or recommend any Acquisition Proposal. Nothing in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, this Section 4.02(a) shall prevent the Board of Directors of the Company may(or any committee thereof) from considering, in response negotiating, discussing, approving and recommending to the stockholders of the Company a bona fide written Takeover Acquisition Proposal that such not solicited in violation of this Agreement, provided the Board of Directors of the Company determines in good faith faith, based upon advice of outside legal counsel, that it is reasonably likely required to result do so in an Adverse Recommendation Change (as defined beloworder to discharge properly its fiduciary duties. Nothing contained in this Section 4.02(a) or constitutes or is reasonably likely shall prevent the Board of Directors of the Company from taking and disclosing to lead the Company's stockholders a position with regard to a Superior Proposal (as defined below), tender offer or exchange offer contemplated by Rules 14d-9 and which Takeover Proposal was unsolicited 14e-2(a) promulgated under the Exchange Act and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect making such disclosure to the stockholders of the Company and its subsidiaries to as may be required under applicable law; provided, that the person Board of Directors of the Company shall not recommend that the stockholders of the Company tender their shares of Company Common Stock in connection with such tender or exchange offer unless the Board of Directors of the Company determines in good faith, based upon advice of outside legal counsel, that making such Takeover Proposal (and recommendation is required in order to discharge properly its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalfiduciary duties.

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee of the Company other Acquired Corporations or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, continue or otherwise participate (iii) engage in any discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal, (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise cooperate in relating to any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the adoption and approval of this Agreement by the Required Company Stockholder ApprovalVote, the Board of Directors of Company shall not be prohibited by this Section 4.3(a) from furnishing nonpublic information regarding the Company mayAcquired Corporations to, or entering into discussions with, any Person in response to a bona fide written Takeover Proposal Superior Offer that is submitted by such Board Person (and not withdrawn) if (1) neither the Company nor any Representative of Directors determines any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (2) the board of directors of the Company concludes in good faith is reasonably likely faith, after consultation with its outside legal counsel, that the failure to result in an Adverse Recommendation Change take such action would be inconsistent with the fiduciary obligations of such board of directors to the Company's stockholders under applicable law, (as defined below3) prior to furnishing any such nonpublic information to, or constitutes entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or is reasonably likely to lead to a Superior Proposal (as defined below)enter into discussions with, such Person, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and its subsidiaries disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to ParentCompany, and (y4) participate in discussions or negotiations with prior to furnishing any such nonpublic information to such Person, the person making Company furnishes such Takeover Proposal nonpublic information to Parent (and its representatives) regarding to the extent such Takeover Proposal.nonpublic information has not been previously furnished by the

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries Subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of and it shall cause its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of and its subsidiaries Subsidiaries’ respective Representatives not to, directly or indirectly, : (i) solicit, initiate or encouragesolicit or knowingly facilitate or encourage (it being understood that providing information in the ordinary course of business consistent with past practice to categories of Persons to whom the Company routinely provides such information in the ordinary course of business consistent with past practice will not, in and of itself, constitute encouragement hereunder) any inquiry or take the making of any other action knowingly to facilitate, any proposal that constitutes a Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information or data or access to its properties with respect to, or otherwise cooperate in with or knowingly take any way with, other action to facilitate any proposal that constitutes any Takeover Proposal. The Company shall, in each case other than a and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal made by Parent; provided(and shall not waive or otherwise modify any existing standstill provision or confidentiality agreement that benefits the Company) and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of any confidential information previously furnished to such Person in connection therewith. Notwithstanding the foregoing, however, that at any time prior to obtaining the Stockholder ApprovalAcceptance Time, the Board of Directors of the Company mayand its Representatives, in response to a bona fide written Takeover Proposal that such was made after the date of this Agreement and did not result from a material breach of this Agreement and that (1) constitutes a Superior Proposal or (2) the Board of Directors of the Company determines in good faith is (after consultation with outside counsel and a financial advisor of nationally recognized reputation) could reasonably likely be expected to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal Proposal, shall be permitted to: (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject A) provide access to compliance with Section 4.02(c) and (d), (x) furnish non-public information with respect to the Company and its subsidiaries to the person Person making such Takeover Proposal (and its representatives) pursuant to a customary and in accordance with an executed confidentiality agreement, agreement not less restrictive of the other party than the provisions of Section 6.3(b); provided that all such information provided to such Person has previously been provided to Parent or is provided on a to Parent prior to or substantially concurrent basis concurrently with the time it is provided to Parent, such Person; and (yB) participate in discussions or negotiations with the person making respect to such Takeover Proposal (and its representatives) regarding with the Person making such Takeover Proposal.

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries Affiliates to, or nor shall it authorize or permit any Affiliate, director, officer or employee of the Company or any of its subsidiaries such Affiliate or any investment banker, financial adviser, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries such Affiliate to, directly or indirectly, (i) solicit, seek, initiate or encourageencourage (including by way of furnishing information), or take any other action knowingly to facilitatefacilitate the submission of any inquiries or the making of any proposal or offer that constitutes, any or would be reasonably likely to constitute or lead to, a Takeover Proposal (as defined below) or Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to(including by way of furnishing information), or otherwise cooperate in any way with, or assist, participate in, facilitate or encourage, any effort or attempt by any person to submit or otherwise act in furtherance of, a Takeover Proposal, (iii) agree to, approve or recommend any Takeover Proposal, or (iv) take any other action inconsistent with the obligations and commitments of the Company contained in each case other than this Section 4.02 provided that nothing herein shall prohibit the presentation of a Takeover Proposal made by Parent; providedto the Company Board which was not obtained or received in violation of this Section 4.02. Notwithstanding the foregoing, however, in the event that at any time prior the Company Board determines in good faith after consultation with outside counsel that the failure to obtaining the Stockholder Approval, the Board of Directors do so would constitute a breach of the Company Board's fiduciary duties to the Shareholders under applicable law, the Company Board may, in response to (A) a Superior Proposal or (B) a bona fide written Takeover Proposal that such the Company Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowa "LIKELY SUPERIOR PROPOSAL") at any time prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer (the "SPECIFIED DATE"), and which Takeover Proposal that in each case was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), ): (x) furnish information with respect to the Company and its subsidiaries Subsidiaries to the person making such Takeover Superior Proposal or Likely Superior Proposal (and its representatives) pursuant to a an appropriate and customary confidentiality agreementand standstill agreement that is no less restrictive than the Confidentiality Agreement between Xxxxxxx Education, provided that all such information is provided on a prior or substantially concurrent basis to ParentInc. and the Company, dated June 14, 2000 (the CONFIDENTIALITY AGREEMENT") and (y) participate in discussions or negotiations with the person making such Takeover Superior Proposal or Likely Superior Proposal (and its representatives) regarding such Takeover Superior Proposal or Likely Superior Proposal.

No Solicitation. (a) The Company shall, shall cause each Subsidiary to and shall direct and use reasonable efforts to cause its and its Subsidiaries' officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties other than Parent and Sub that may be ongoing with respect to an Alternative Transaction (as hereinafter defined). The Company shall not, nor shall it cause each Subsidiary not to and shall not authorize or permit any of its subsidiaries toor its Subsidiaries' officers, directors or authorize or permit any director, officer or employee of the Company or any of its subsidiaries employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries retained by it to, directly or indirectly, (i) solicit, initiate or encourage, furnish any information in response to any inquiries or take the making of any other action knowingly proposal that may lead to facilitate, any Takeover Proposal (as defined below) an Alternative Transaction or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to regarding any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parentproposed Alternative Transaction; provided, however, that if, at any time prior to obtaining the Stockholder Approvalacceptance for payment of Shares pursuant to and subject to the conditions (including the Minimum Condition) of the Offer, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith faith, after consultation with its outside counsel, that action is reasonably likely to result in an Adverse Recommendation Change required by reason of the Board of Directors' fiduciary duties under applicable law, the Company may (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and 6.2(c)), in response to an unsolicited Third Party Proposal (das defined herein), (xA) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Third Party Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided agreement that all such information is provided on a prior or substantially concurrent basis to Parent, at least as protective of the Company's interests as is the Confidentiality Agreement (as defined in Section 7.2) and (yB) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.Alternative Transaction; provided, further, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any proposed Alternative Transaction or withdrawing its recommendation of the Offer pursuant to Section 6.2(b). Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or employee of the Company or any Subsidiary or any investment banker, financial advisor, attorney, accountant or other representative of the Company, acting on behalf of the Company, shall be deemed to be a breach of this Section 6.2(a) by the Company. For purposes of this Agreement, a "

No Solicitation. (a) The During the period beginning on the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 9.1, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall instruct and cause its and its Subsidiaries’ other Representatives to, cease and cause to be terminated any discussions or negotiations with any Person that would otherwise be prohibited by this Section 7.7(a). Promptly following the execution of this Agreement, the Company shall deliver a written notice to each such Person to the effect that, subject to the provisions of this Section 7.7, the Company is ending all discussions and negotiations with such Person with respect to any Alternative Proposal, effective on and from the date of this Agreement, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and/or its Subsidiaries. Subject to the provisions of this Section 7.7, during the period commencing on the date of this Agreement and continuing until the earlier to occur of the Effective Time and the Termination Date, the Company and its Subsidiaries shall not, nor and shall it permit any of cause its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries and their respective Representatives not to, directly or indirectly, (i) solicitsolicit (including by way of furnishing non-public information), initiate or encourageknowingly encourage or facilitate any inquiry with respect to, or take any other action knowingly to facilitatethe making, submission or announcement of, any Takeover Proposal (as defined below) proposal or offer that constitutes, or is reasonably expected to lead to, an Alternative Proposal, (ii) enter intofurnish to any Person (other than Parent or Merger Sub or their respective designees) any non-public information relating to the Company and/or its Subsidiaries, or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company and/or its Subsidiaries (other than Parent or Merger Sub or their respective designees), in any such case relating to an Alternative Proposal or any inquiries or the making of any proposal that could lead to an Alternative Proposal, (iii) engage in, continue or otherwise participate in any discussions or negotiations regardingregarding any Alternative Proposal with any Person, or furnish except to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior notify such Person as to obtaining the Stockholder Approval, the Board of Directors existence and content of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach provisions of this Section 4.027.7, and subject or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to compliance with Section 4.02(c) and (dcommunicate an Alternative Proposal to Company Board), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalanti-takeover laws.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall will not, nor shall will it authorize or permit any of its subsidiaries toofficers, directors, affiliates or authorize or permit any director, officer or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or hereinafter defined), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that at any time prior to obtaining the approval of this Agreement by the required Company Stockholder ApprovalVote, this Section 5.4(a) shall not prohibit Company from furnishing nonpublic information regarding Company to, entering into a confidentiality agreement with or entering into discussions with, any person or group in response to a Superior Offer submitted by such person or group (and not withdrawn) if (1) neither Company nor any representative of Company shall have violated any of the restrictions set forth in this Section 5.4, (2) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of Company to result in comply with its fiduciary obligations to Company's stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such person or group, Company gives Parent written notice of the identity of such person or group and of Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such person or group and the Company receives from such person or group an Adverse Recommendation Change (as defined below) executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person or constitutes group by or is reasonably likely to lead to a Superior Proposal (as defined below)on behalf of the Company, and which Takeover Proposal was unsolicited (4) contemporaneously with furnishing any such nonpublic information to such person or group, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Company will immediately cease any and did not otherwise result from all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of Company or any investment banker, attorney or other advisor or representative of Company shall be deemed to be a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.5.4

No Solicitation. (a) The Company Such Stockholder shall not, nor shall it such Stockholder knowingly permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, Stockholder Representatives to (i) solicit, initiate initiate, intentionally encourage or encourageintentionally facilitate any inquiry, offer or proposal with respect to, or take any other action knowingly that constitutes or would reasonably be expected to facilitatelead to, any Takeover Proposal (as defined below) or an Alternative Proposal, (ii) enter into, continue or otherwise engage or participate in any discussions or negotiations regarding, with respect to an Alternative Proposal or furnish provide nonpublic information to any person any information Person with respect to, or otherwise cooperate in any way withwith the intention to solicit, any Takeover an Alternative Proposal, or (iii) enter into any letter of intent or agreement in each case other than a Takeover Proposal made by Parentprinciple or any agreement providing for any Alternative Proposal; provided, however, that at any time prior notwithstanding anything in this Agreement to obtaining the Stockholder Approvalcontrary, the Board of Directors of (1) if the Company may, in response to a bona fide written Takeover receives an Alternate Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a any breach of this Section 4.023(d) by such Stockholder or to such Stockholder’s knowledge Section 4.02 of the Tender Offer Agreement in any material respect and that the Company Board has determined constitutes a Qualifying Proposal or could reasonably be expected to result in a Qualifying Proposal, then such Stockholder and subject to compliance with Section 4.02(c) and (d), its Stockholder Representatives may (x) furnish nonpublic information with respect to the Company and its subsidiaries to the person third-party making such Takeover Alternative Proposal (and its representatives) pursuant to if such third-party has executed a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and agreement with the Company and/or (y) participate engage in discussions or negotiations with such third-party with respect to the person Alternative Proposal, (2) nothing contained in this Agreement shall prohibit such Stockholder or any of its Stockholder Representatives from making any public disclosures in respect of an Alternative Proposal if such Takeover Proposal (and Person determines in good faith that the failure to make such disclosure or taking any actions which would be inconsistent with such Person’s exercise of its representatives) regarding fiduciary duties. “Stockholder Representatives” means, with respect to a Stockholder, such Takeover ProposalStockholder’s directors, partners, officers, employees, accountants, consultants, legal counsel, investment bankers, financial advisors, brokers, finders or agents or other representatives of such Stockholder except that any Person who is a member of the Company Board shall not be a “Stockholder Representative” for any purpose hereunder.

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it not authorize or permit either of its Subsidiaries or any Representative of any of its subsidiaries the Acquired Corporations directly or indirectly to, (i) solicit, initiate, intentionally encourage, intentionally induce or intentionally facilitate the making, submission or announcement of any Acquisition Proposal (whether by amending, or granting any waiver under, the Company Rights Agreement or otherwise) or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction; PROVIDED, HOWEVER, that prior to the Acceptance Date (and subject to the Company's right to terminate this Agreement pursuant to Section 8.1(h)), this Section 5.3(a) shall not prohibit the Company from furnishing information regarding the Acquired Corporations to, or authorize entering into discussions or permit negotiations with, any director, officer Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) such Superior Offer shall not have resulted directly or employee indirectly from any breach of this Section 5.3 or from any action taken by the Company or any of its subsidiaries or Representatives with the intent of circumventing any investment bankerof the provisions set forth in this Section 5.3, attorney, accountant or other advisor or representative (2) the board of directors of the Company or any concludes in good faith, after having taken into account the advice of its subsidiaries outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary obligations of the Company's board of directors to the Company's stockholders under applicable Legal Requirements, (3) at least one business day prior to furnishing any such information to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any entering into discussions or negotiations regardingwith, or such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in enter into discussions or negotiations with with, such Person, and the person making Company receives from such Takeover Proposal Person an executed confidentiality agreement containing provisions (and its representativesincluding "standstill" provisions) regarding such Takeover Proposalno less 41.

No Solicitation. (a) The Company shall not, nor and shall it permit cause its Subsidiaries not to, and will use its reasonable best efforts to see that its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives (collectively, "Representatives") do not, directly or indirectly: (i) solicit, initiate, or knowingly encourage, or take any action to facilitate the making of any Acquisition Proposal (as defined in Section 7.1(d)) or any inquiry with respect thereto; (ii) enter into any agreement with respect to any Acquisition Proposal; or (iii) engage in discussions or negotiations with, or afford access to or provide any nonpublic information or data relating to the Company or its Subsidiaries to any Person relating to any Acquisition Proposal, or otherwise cooperate with, or assist or participate in, facilitate or knowingly encourage an effort or attempt by any Person to do or seek any of its subsidiaries tothe foregoing; provided, or authorize or permit any directorhowever, officer or employee of that in the event an unsolicited written Acquisition Proposal for the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of Subsidiaries is received by the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate not in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach violation of this Section 4.02, and subject to compliance with Section 4.02(c) and (d7.1(a), the Company may (xX) furnish confidential information with respect to the Company and its subsidiaries Subsidiaries to the person Person making such Takeover Acquisition Proposal (and its representatives) the Person's Affiliates and representatives pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, agreement and (yY) participate in discussions or and engage in negotiations with the person making Person and the Person's Affiliates and representatives regarding such Takeover Acquisition Proposal, in response to an unsolicited written Acquisition Proposal if, but only if, the Board of Directors of the Company, or the Special Committee, concludes in good faith and on the basis of (1) advice from financial advisors that such Acquisition Proposal involves consideration to the holders of the Company's Common Stock which is reasonably likely to result in a Superior Proposal (as defined in Section 7.1(d) to the Merger set forth in this Agreement and (2) consultation with independent outside counsel that the failure to discuss, negotiate and consider such Acquisition Proposal could constitute a violation of the fiduciary duties of the Company's Board of Directors, or its representatives) regarding Special Committee, under applicable Law; and provided, further, that the Company shall notify Parent promptly in writing of any inquiries, expressions of interest, proposals or offers received by the Company or any of the Company's representatives relating to any Acquisition Proposal or possibility or consideration of making an Acquisition Proposal indicating, in connection with such Takeover notice, the terms and conditions of any such Acquisition Proposal and, if the Acquisition Proposal is formally made, the name of the Person making the Acquisition Proposal. The Company hereby agrees to furnish promptly to Parent copies of any confidential information provided to the Person making any such Acquisition Proposal, or itemize such confidential information to the extent same has previously been given or made available to Parent. In addition, the Company hereby agrees that it will take the necessary steps promptly to inform each Person making an Acquisition Proposal of the obligations undertaken in this Section 7.1.

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company Subsidiaries or any of its subsidiaries their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor advisor, agent or representative of the Company (collectively, “Representatives”) retained by it or any of its subsidiaries Subsidiaries to, directly or indirectlyindirectly through another person, (i) solicit, initiate or knowingly encourage, or take any other action knowingly to designed to, or which could reasonably be expected to, facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect toinformation, or otherwise cooperate in any way with, any Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in each case other than the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 4.02(a) by the Company. The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal made by Parent; providedand request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, however, that at any time prior to obtaining the Stockholder Company Shareholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such the Board of Directors of the Company reasonably determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belowafter consultation with outside counsel and a financial advisor of nationally recognized reputation) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below)Proposal, and which Takeover Proposal was unsolicited not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.024.02(a), and the Company may, subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries Subsidiaries to the person making such Takeover Proposal (and its representativesRepresentatives) pursuant to a customary confidentiality agreementagreement not less restrictive to such person than the confidentiality provisions of the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided on a to Parent prior to or substantially concurrent basis with the time it is provided to Parentsuch person, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representativesRepresentatives) regarding such Takeover Proposal.

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company Subsidiaries or any of its subsidiaries their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor advisor, agent or representative of the Company (collectively, "Representatives") retained by it or any of its subsidiaries Subsidiaries to, directly or indirectlyindirectly through another person, (i) solicit, initiate or knowingly encourage, or take any other action knowingly to designed to, or which could reasonably be expected to, facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect toinformation, or otherwise cooperate in any way with, any Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in each case other than the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 4.02(a) by the Company. The Company shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal made by Parent; providedand request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, however, that at any time prior to obtaining the Stockholder Shareholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such the Board of Directors of the Company reasonably determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belowafter consultation with outside counsel and a financial advisor of nationally recognized reputation) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below)Proposal, and which Takeover Proposal was unsolicited not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.024.02(a), and the Company may, subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries Subsidiaries to the person making such Takeover Proposal (and its representativesRepresentatives) pursuant to a customary confidentiality agreementagreement not less restrictive to such person than the confidentiality provisions of the Confidentiality Agreement, provided that all such information has previously been provided to Parent or is provided on a to Parent prior to or substantially concurrent basis with the time it is provided to Parentsuch person, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representativesRepresentatives) regarding such Takeover Proposal.

No Solicitation. (a) The Company shall notagrees that following the date of this Agreement and prior to the earlier of the Effective Time or the Termination Date, neither it nor shall it permit any of its subsidiaries to, or authorize or permit Subsidiaries nor any director, officer or employee of the Company officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiaries) not to, directly or indirectly, (i) solicit, initiate inquiries regarding or encourage, or take any other action knowingly to facilitate, solicit the making of any Takeover Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning a Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and the Company's Board of Directors shall be permitted to (A) comply with Rule 14d-9, Rule 14e-2 and other applicable rules promulgated under the Exchange Act with regard to a Takeover Proposal (as defined below) or (iiB) enter into, continue or otherwise participate engage in any discussions or negotiations regardingwith, or furnish to any person provide any information with respect to, or otherwise cooperate any Person in any way with, any Takeover Proposal, in each case other than a response to an unsolicited Takeover Proposal made by any such Person; provided, that prior to its receipt of any information from the Company, such Person shall be required to enter into a customary confidentiality agreement with the Company containing terms no less restrictive than the terms of the Confidentiality Agreement and the Company shall provide Parent with copies of all information provided to such Person to the extent that such information has not been previously provided to Parent; provided, howeverfurther that any information provided to such Person shall be concurrently provided to the Parent. The Company agrees that it will, that at and will cause its officers, directors and representatives to, immediately cease and cause to be terminated any time prior to obtaining the Stockholder Approval, the Board of Directors negotiations existing as of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach date of this Section 4.02, and subject to compliance Agreement with Section 4.02(c) and (d), (x) furnish information any parties conducted heretofore with respect to any Takeover Proposal. The Company agrees that it will use reasonable best efforts to promptly inform its directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 5.4. Nothing in this Section 5.4 shall permit Parent or the Company and its subsidiaries to the person making such Takeover Proposal terminate this Agreement (and its representatives) pursuant to a customary confidentiality agreement, except as specifically provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalArticle VII).

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it not authorize or permit any of its subsidiaries toSubsidiaries or any officer, or authorize or permit any director, officer employee, agent, investment banker, financial advisor, attorney, accountant, broker, finder or employee other representative (collectively, "Representatives") of any of the Company or any of its subsidiaries or any investment bankerSubsidiaries (collectively, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, "Acquired Corporations") directly or indirectlyindirectly to, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) furnish any nonpublic information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend (or agree to approve, endorse or recommend) any Acquisition Proposal or (v) enter into, continue into any letter of intent or similar document or any agreement contemplating or otherwise participate in any discussions or negotiations regarding, or furnish relating to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at this Section 5.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any time prior Person in response to obtaining the Stockholder Approval, an unsolicited bona fide written Acquisition Proposal submitted (and not withdrawn) by such Person if (1) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal based upon the advice of its financial advisor, that such Acquisition Proposal would result in a transaction that is more favorable from a financial point of view to the Company's stockholders than the Merger, (2) the Board of Directors determines from the Company concludes in good faith faith, after consultation with outside legal counsel, that such action is reasonably likely required in order for the Board of Directors of the Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to the Company's stockholders under applicable law, (as defined below3) prior to furnishing any such nonpublic information to, or constitutes entering into discussions with, such Person, the Company gives the Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or is reasonably likely to lead to a Superior Proposal (as defined below)enter into discussions with, such Person, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and its subsidiaries disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to ParentCompany, and (y4) participate in discussions or negotiations with prior to furnishing any such nonpublic information to such Person, the person making Company furnishes such Takeover Proposal nonpublic information to the Parent (and its representatives) regarding to the extent such Takeover Proposalnonpublic information has not been previously furnished by the Company to the Parent).

No Solicitation. (a) The From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Article 7, the Company and its Subsidiaries shall not, nor and each of them shall it permit any of use its subsidiaries to, or authorize or permit any director, officer or employee of reasonable best efforts to cause the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly intended to facilitatefacilitate or with the reasonably foreseeable effect of facilitating, any Takeover inquiry in connection with, or the making of any proposal by any party that constitutes, an Acquisition Proposal (as defined below) or other than the Offer and the Merger), (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingwith any party (other than Parent, Purchaser or the Parent Representatives) regarding an Acquisition Proposal, (iii) furnish to any person party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate, or with the reasonably foreseeable effect of facilitating, an Acquisition Proposal, or (iv) enter into any agreement, arrangement or understanding with respect to, or otherwise cooperate in any way withendorse, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of nothing contained in this Section 5.10(a) shall prohibit the Company mayBoard or the Special Committee from furnishing information to, or engaging in response to a bona fide written Takeover discussions or negotiations with, any party that makes an Acquisition Proposal that such if (A) Purchaser has not yet accepted for payment and paid for Shares in the Offer, (B) the Company Board of Directors determines in good faith is reasonably likely after consultation with its outside legal counsel, that failing to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to take such action would create a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from reasonable likelihood of a breach of this Section 4.02, and subject its fiduciary duties to compliance with Section 4.02(c) and (d)the Company’s shareholders under applicable Law, (xC) furnish information with respect the Acquisition Proposal constitutes a Superior Proposal, (D) prior to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all furnishing such information is provided on a prior to, or substantially concurrent basis to Parent, and (y) participate engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to the person Company, in all material respects, than those contained in the Confidentiality Agreement, and (E) the Company notifies Parent not less than three (3) Business Days prior to taking such action (which notice shall identify the party making such Takeover Proposal (the proposal, and its representatives) regarding such Takeover describe the material terms thereof). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.

No Solicitation. (a) The From and after the date of this Agreement until the earlier to occur of the Effective Time or termination of this Agreement pursuant to Article VII, Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any of their respective officers, directors, controlled affiliates or employees or any of their respective investment bankers, attorneys or other advisors or representatives to, directly or indirectly: (i) solicit, initiate, or take an action intended to encourage or induce the making, submission or announcement of any Acquisition Proposal (as defined below); (ii) engage or participate in any discussions or negotiations with any person (other than any officer, director, officer controlled affiliate or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (isubsidiaries) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in take any way withother action intended to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal; (iii) approve, in each case other than a Takeover Proposal made by Parentendorse or recommend any Acquisition Proposal; or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, however, that at any time prior to obtaining the Stockholder Approvalapproval of this Agreement and the Merger by the Required Company Shareholder Vote, nothing contained in this Agreement (including, without limitation, this Section 5.7) shall prohibit the Board of Directors of Company from: (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Company may, Exchange Act or Section 329 or any other applicable section of the Israeli Companies Law with regard to a tender or exchange offer (unless such tender or exchange offer was made in violation of this Section 5.7); or (ii) in response to a bona fide written Takeover an unsolicited Acquisition Proposal that such is not withdrawn and that Company's Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or concludes constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) (or that is reasonably likely to constitute, taking into account all of the relevant facts and circumstances, a Superior Proposal), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.,

No Solicitation. (a) The Notwithstanding any waivers given by Acquiror Parent to the Elan Companies prior to the date hereof, from and after the date hereof and up to and including the Termination Date, without the prior written consent of the Acquirors, no Elan Company shall not, nor shall it permit any of its subsidiaries to, or will authorize or permit any director, officer representative or employee of the any Elan Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, to (i) directly or indirectly solicit, initiate or encourage, encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal that constitutes or may reasonably be expected to facilitatelead to an Acquisition Proposal from any Person, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate engage in any discussions discussion or negotiations regarding, negotiation relating thereto or furnish to any person any information with respect toto the Elan Companies in connection therewith, or otherwise cooperate except as may be required in any way with, any Takeover Proposal, in each case other than a Takeover the exercise by it of its fiduciary duties under applicable law after receipt of an Acquisition Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.028.18(a); provided, and subject to compliance with Section 4.02(c) and (d)however, (x) that the Elan Companies shall furnish copies of any such information with respect to the Company and its subsidiaries Acquirors contemporaneously with the furnishment to the person making any such Takeover Proposal Person (and its representatives) pursuant which furnishment to such Person shall be subject to a customary confidentiality agreement), provided that all or (iii) accept or agree to accept any Acquisition Proposal. If any Elan Company receives any such information is provided on inquiries, offers or proposals it shall promptly notify the Acquirors orally and in writing of such event. If any Elan Company receives an Acquisition Proposal, such Elan Company shall promptly notify the Acquirors in writing after the receipt thereof (including providing a prior or substantially concurrent basis to Parentcopy thereof in writing), the terms and (y) participate in discussions or negotiations with conditions of such Acquisition Proposal and the person identity of the Person making such Takeover Proposal Acquisition Proposal. Such Elan Company also shall promptly notify the Acquirors of any change to or modification of such Acquisition Proposal. As used herein, "Acquisition Proposal" means any proposal or offer (and its representativesother than pursuant to this Agreement) regarding such Takeover Proposalto acquire in any manner an ownership interest in any part of the Businesses or the Products.

No Solicitation. (a) The From and after the date of this Agreement until the earlier of the Acceptance Date or the termination of this Agreement pursuant to Article 7, the Company shall not, nor and the Company shall it not permit its Subsidiaries or its executive officers and directors to, and the Company shall not authorize or knowingly permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Representatives to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly intended to facilitatefacilitate any inquiry in connection with, or the making of any Takeover proposal by any party that constitutes, an Acquisition Proposal (as defined below) or other than the Offer and the Merger), (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingwith any party (other than Parent, Purchaser or the Parent Representatives) regarding an Acquisition Proposal, (iii) furnish to any person party (other than Parent, Purchaser or the Parent Representatives) any information intended to facilitate an Acquisition Proposal, or (iv) enter into any agreement, arrangement or understanding with respect to, or otherwise cooperate in any way withendorse, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of nothing contained in this Section 5.10(a) shall prohibit the Company mayBoard from furnishing information to, or engaging in response to a discussions or negotiations with, any party that makes an unsolicited bona fide written Takeover Acquisition Proposal that such if (A) the Company Board of Directors determines in good faith is reasonably after consultation with its outside legal counsel, that failing to take such action would be substantially likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject its fiduciary duties to compliance with Section 4.02(c) and (d)the Company’s stockholders under applicable Law, (xB) furnish information with respect to the Company Board determines in good faith after consultation with its outside legal counsel and its subsidiaries financial advisors that the Acquisition Proposal constitutes, or would reasonably be expected to the person making such Takeover Proposal result in, a Superior Proposal, (and its representativesC) pursuant prior to a customary confidentiality agreement, provided that all furnishing such information is provided on a prior to, or substantially concurrent basis to Parent, and (y) participate engaging in discussions or negotiations with, such party, the Company receives from such party an executed confidentiality agreement with terms no less favorable to the person making Company, in all material respects, than those contained in the Confidentiality Agreement, and (D) the Company notifies Parent prior to taking any such Takeover Proposal action (which notice shall include a complete and its representatives) regarding correct copy of such Takeover proposal). The Company agrees that it shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries Subsidiaries to, or nor shall it authorize or permit any officer, director, officer or employee of the Company or any of its subsidiaries or any investment bankeremployee, attorney, accountant or other advisor agent or representative of the Company or any of its subsidiaries Subsidiaries ("COMPANY REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate or encourageinitiate, or take knowingly facilitate the submission of any other action knowingly to facilitateAcquisition Proposal or any inquiries regarding any Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person (including any parties with which the Company or any representative of the Company has previously engaged in discussions or negotiations with respect to any Acquisition Proposal) any information with respect toto its business, properties or assets, for the purpose of facilitating the consummation of, any Acquisition Proposal, or otherwise cooperate in (iii) enter into any way with, agreement with respect to any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at the foregoing shall not prohibit the Company or any time of its Subsidiaries or the Company Representatives from, prior to obtaining the Stockholder Approvalacceptance for payment of Shares pursuant to the Offer, (A) furnishing information pursuant to a confidentiality letter (provided for informational purposes to Parent subject to the proviso in Section 5.02(c)), with terms no less favorable than the Confidentiality Agreement (as defined in Section 5.03) concerning the Company and its businesses, properties or assets to a Person who has made an unsolicited written Acquisition Proposal, or (B) engaging in discussions or negotiations with such Person who has made an unsolicited written Acquisition Proposal, but in each case referred to in the foregoing clauses (A) and (B) only to the extent that the Board of Directors of the Company mayshall have concluded in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside legal counsel, that such action is necessary in order for the Board of Directors determines to comply with its fiduciary duties to the stockholders of the Company under applicable law. For purposes of this Agreement, "ACQUISITION PROPOSAL" means any proposal or offer for, or any expression of interest (by public announcement or otherwise) by any Person, other than Parent or its affiliates, in good faith is reasonably likely a merger or other business combination involving the Company or any Subsidiary of the Company or any inquiry, proposal or offer to result acquire in an Adverse Recommendation Change any manner (as defined below) or constitutes or is reasonably likely to lead to including through a Superior Proposal (as defined belowjoint venture with the Company), and which Takeover Proposal was unsolicited and did not otherwise result from a breach directly or indirectly, all or any significant portion of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the assets or capital stock of the Company and its subsidiaries to or any Subsidiary of the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company shall immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal and shall seek to have returned to the Company any confidential information that has been provided in any such discussions or negotiations. From the date hereof, the Company shall not, nor shall it permit any of its subsidiaries Subsidiaries to, or nor shall it authorize or permit any directorof its officers, officer directors, or employee of the Company employees or any Affiliate, investment banker, financial advisor, attorney, accountant, or other representative retained by it or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiaries to, directly or indirectly, (i) solicit, initiate or encourageknowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action knowingly intended to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, regarding any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior following the receipt of a Superior Proposal or a proposal which is reasonably expected to obtaining lead to a Superior Proposal that was unsolicited and made after the Stockholder Approvaldate hereof in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(c), (A) request information from the Person making such Takeover Proposal for the purpose of the Board of Directors of the Company may, in response to a bona fide written informing itself about the Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), has been made and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d)the Person that made it, (xB) furnish information with respect to the Company and its subsidiaries to the person Person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that (1) such confidentiality agreement contains substantially the same terms as (or terms no less favorable to the Company) than those contained in the Confidentiality Agreement dated as of February 27, 2004 between Parent and the Company (as it may be amended, the “Confidentiality Agreement”) and (2) the Company advises Parent of all such nonpublic information is provided on a prior or substantially concurrent basis delivered to Parentsuch Person concurrently with its delivery to the requesting Person, and (yC) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) Person regarding such Takeover Proposal; provided, further, that the actions described in clauses (B) and (C) of the immediately preceding proviso may be taken only on or before the date the Company Shareholder Approval is obtained. It is agreed that any violation of the restrictions set forth in the preceding sentence by any executive officer, director, investment banker, attorney, or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company.

No Solicitation. (a) The Company shall not, nor shall it permit or authorize any of its subsidiaries toSubsidiaries or any officer, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment bankeremployee, attorneyaccountant, accountant counsel, financial advisor, agent or other advisor or representative of the Company or any of its subsidiaries Subsidiaries (collectively, the “Company Representatives”) to, directly or indirectly, (i) solicit, initiate initiate, facilitate, respond to or encourage, including by way of furnishing non-public information, any inquiries regarding or relating to, or the submission of, any Takeover Proposal, (ii) participate in any discussions or negotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries, provide access to any of the properties, books, records or employees of the Company or its Subsidiaries or take any other action knowingly action, in each such case regarding or to facilitatefacilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement or commitment with respect to any Takeover Proposal (an “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Takeover Proposal, except in each case as otherwise specifically provided in Section 7.2(c); (iv) grant any waiver or release under any standstill or similar agreement; (v) take any action to exempt any Person from the restrictions on “business combinations” contained in Section 203 of Delaware Law or otherwise cause such restrictions not to apply, or (vi) authorize or direct any Company Representative to take any such action; provided, however, that nothing contained in this Section 7.2(a) or any other provision hereof shall prohibit the Company or the Company Board from (A) taking and disclosing to the Company’s stockholders a position required by Rules 14d-9 and 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (B) making such disclosure to the Company’s stockholders as, in the good faith judgment of the Company Board, after consultation with its outside counsel, is required under applicable Law in order to comply with its fiduciary duties, or (C) notifying any Person solely of the existence of and restrictions under the provisions of this Section 7.2, provided that the Company may not, except as permitted by Section 7.2(b) or (c), withdraw or modify, or propose to the public or any Third Party (other than the Company’s agents and representatives) to withdraw or modify, its approval or recommendation of this Agreement or the transactions contemplated hereby, including the Merger, or approve or recommend, or propose to the public or any Third Party (other than the Company’s agents and representatives) to approve or recommend any Takeover Proposal, or enter into any Alternative Acquisition Agreement. Upon execution of this Agreement, the Company shall, and it shall cause the Company Representatives and its Subsidiaries to, immediately cease and cause to be terminated any existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Notwithstanding any of the foregoing restrictions set forth in this Section 7.2(a), nothing in this Agreement shall prevent the Company or the Company Board from furnishing (or causing to be furnished), prior to, but not after, the time the vote is taken with respect to the approval of the Company Voting Proposal at the Company Meeting, information concerning its business, properties or assets, which information is not of greater scope, area or detail than was provided to Parent, to any Person or group pursuant to a confidentiality agreement with terms and conditions substantially similar to those of the Confidentiality Agreement, and may negotiate and participate in discussions and negotiations with such Person or group who has made a bona fide, written Takeover Proposal, but only if: (w) such Takeover Proposal was made after the date of this Agreement (it being understood that such a Takeover Proposal made after the date of this Agreement by a Person who has made a Takeover Proposal prior to the date of this Agreement shall be considered a new Takeover Proposal made after the date of this Agreement) and none of the Company, its Subsidiaries and their representatives has violated any of the restrictions set forth in this Section 7.2 (other than immaterial violations that have not (1) directly or indirectly resulted in the making of such Takeover Proposal or (2) otherwise had an adverse impact on Parent’s rights under this Section 7.2) with respect to such Person making the Takeover Proposal; (x) such Person or group has submitted a Takeover Proposal that the Company Board has determined (after consultation with outside legal counsel) either (i) constitutes a Superior Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish is more favorable to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other the Company’s stockholders from a financial point of view than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or Merger and is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, Proposal; and (y) participate the Company Board determines in discussions good faith, after consultation with its outside counsel, that such action is required to discharge the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law. The Company shall not release or negotiations with permit the person making such Takeover Proposal release of any Person from, or waive or permit the waiver of any provision of, any confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights. The Company will promptly (and its representativesin any event within one (1) regarding Business Day) notify Parent telephonically and in writing of the existence of any proposal, discussion, negotiation or inquiry received by the Company that is or could reasonably be expected to constitute a Takeover Proposal, and the Company will promptly communicate in writing to Parent the terms and conditions of any such proposal, discussion, negotiation or inquiry which it may receive and a copy thereof and the identity of the Person making the same. The Company shall inform Parent within one (1) Business Day after any change to the material terms of any such Takeover Proposal. Within one (1) Business Day after any determination by the Company Board that a Takeover Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Merger Sub a written notice advising them of such determination, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Merger Sub with a copy of the Superior Proposal. The Company will promptly provide to Parent any non-public information concerning the Company provided to any other Person or group which was not previously provided to Parent.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, affiliates or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, indirectly (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or ), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Acquisition Proposal, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, however, that at between the date on which the Circular is mailed to the shareholders of Company and the date on which this Agreement is approved by the required Company Shareholder Vote, this Section 6.2(a) shall not prohibit Company from furnishing nonpublic information regarding Company and its subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, person or group in response to a bona fide written Takeover Proposal that Superior Offer submitted by such Board person or group (and not withdrawn) if (1) neither Company nor any representative of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.its

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee of the Company other Acquired Corporations or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate or initiate, encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, continue or otherwise participate (iii) engage in any discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal, (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise cooperate in relating to any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time this Section 4.3 shall not be deemed to prevent the Company or its board of directors from complying with its legal obligations under Rules 14d-9 and 14c-2 under the Exchange Act with regard to an Acquisition Proposal (it being understood that such compliance may constitute a Triggering Event under certain circumstances); and provided, further, that prior to obtaining the adoption of this Agreement by the Required Company Stockholder ApprovalVote, the Board of Directors of this Section 4.3(a) shall not prohibit the Company mayfrom furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a bona fide written Takeover Proposal Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.3, (2) the board of directors of the Company concludes in good faith, after having consulted with its outside legal counsel, that such Board action is required in order for the board of Directors determines in good faith is reasonably likely directors of the Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to the Company's stockholders under applicable law, (as defined below3) at least two business days prior to furnishing any such nonpublic information to, or constitutes entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or is reasonably likely to lead to a Superior Proposal (as defined below)enter into discussions with, such Person, and which Takeover Proposal was unsolicited the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and did disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not otherwise result from been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with any of the provisions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 4.3 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to its terms, the Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making or submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that prior to adoption of this Agreement at the Company Stockholders’ Meeting, this Section 4.6(a) shall not prohibit the Company from furnishing nonpublic information, or entering into discussions with, any person or group who has submitted (and not withdrawn) to the Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of the Company reasonably determines in good faith (after consultation its outside financial advisors) constitutes, or could reasonably be expected to lead to, a Superior Offer; provided further, however, that (1) neither the Company nor any representative of the Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 4.6(a) or Section 4.6(b), in each case in any material respect, (2) the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel, that such action is reasonably necessary in order for the Board of Directors of the Company to act in a manner consistent with its fiduciary obligations to the Company’s stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such person or group, the Company shall have received from such person or group an executed confidentiality agreement containing terms at least as restrictive with regard to the Company’s confidential information as the Confidentiality Agreement, and (4) contemporaneously with furnishing any such nonpublic information to such person or group, the Company shall have furnished such nonpublic information to Parent (to the extent such nonpublic information shall not have been previously furnished by the Company to Parent). Subject to the immediately preceding sentence, the Company and its subsidiaries shall immediately cease, and cause their respective officers, directors, employees, investment bankers, attorneys and other advisors and representatives to cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly shall be deemed to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from be a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 4.6 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company shall notnot directly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee Representative of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectlyindirectly to, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or announcement of any Company Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to any inquiries related to or the making of a Company Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding the Company or any Company Subsidiary to any Person in connection with or in response to any inquiry relating to a Company Acquisition Proposal, continue or otherwise participate (iii) engage in any discussions or negotiations regarding, or furnish with any Person with respect to any person Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; PROVIDED, HOWEVER, that prior to the adoption and approval of this Agreement by the Required Company Stockholder Vote, the Company shall not be prohibited by this Section 4.3(a) from (A) furnishing nonpublic information with respect regarding the Company or any Company Subsidiary to, or otherwise cooperate in any way entering into discussions with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, Person in response to a bona fide Company Superior Offer that is submitted by such Person (and not withdrawn) relating to a Company Acquisition Transaction if (1) neither the Company nor any Representative of the Company shall have violated any of the restrictions set forth in this Section 4.3, (2) the board of directors of the Company concludes in good faith, based upon the advice of its outside legal counsel, that the failure to provide information in response to a written Takeover request by a Person making a Company Acquisition Proposal that and the failure to consider the Company Acquisition Proposal would be reasonably likely to constitute a breach of its fiduciary obligations to the Company's stockholders under applicable law, (3) prior to furnishing any such Board nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of Directors the identity of such Person, the terms and conditions of such Company Superior Offer and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and it receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and (4) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent), (B) withdrawing or modifying its unanimous recommendation referred to in Section 5.2(b) following receipt of a Company Superior Offer if after duly considering the advice of outside counsel to the Company, the board of directors of the Company determines in good faith is that failure to do so would be reasonably likely to result in an Adverse Recommendation Change constitute a breach of its fiduciary obligations to the Company's stockholders under applicable law, or (as defined belowC) or constitutes or is reasonably likely to lead complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Superior Proposal (as defined below)Company Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and which Takeover Proposal was unsolicited and did agrees that any violation of any of the restrictions set forth in the preceding sentence by any of its Representatives, whether or not otherwise result from such Representative is purporting to act on behalf of the Company, shall be deemed to constitute a breach of this Section 4.024.3 by the Company. Nothing contained in this Section 4.3 shall limit the Company's obligation to call, give notice of, convene and subject to compliance hold the Company Stockholders' Meeting in accordance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal5.2.

No Solicitation. (a) The Company shall not, nor shall it permit Subject to any of its subsidiaries to, or authorize or permit any director, officer or employee Order of the Company or Bankruptcy Court directing otherwise, from the date hereof, neither the Seller nor any controlled Affiliate of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries toSeller shall, directly or indirectly, through any officer, director, employee, agent, professional, advisor or other Representative (i) solicit, initiate or encourageknowingly encourage any proposal or offer from any Person (other than Purchaser) relating to any Competing Transaction, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate assist or participate in, or facilitate in any other manner, any effort or attempt by any Person to do or seek the foregoing or (iii) seek or support Bankruptcy Court approval of a motion or Order inconsistent in any way withwith the transactions contemplated herein. Notwithstanding the foregoing, nothing contained herein shall prohibit Seller and any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at of its Representatives from providing information to any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, Person in response to unsolicited inquiries regarding a potential Competing Transaction. Notwithstanding anything to the contrary in this Agreement, the Seller may, directly or indirectly through its Representatives engage or participate in discussions with any Person that has made a bona fide written Takeover Proposal that such Board fide, unsolicited proposal or inquiry in writing relating to any Competing Transaction other than as a result of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach or violation of the terms of this Section 4.027.5, and/or furnish to any such Person any information relating to the Seller and subject to compliance its Business, provided that prior thereto the Seller has complied with Section 4.02(c) and (d), the following: (x) furnish information the Seller shall have entered into a confidentiality agreement with respect such Person, the terms of which are no less favorable to the Company and its subsidiaries to Seller than those contained in the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, Confidentiality Agreement and (y) participate in discussions or negotiations Seller shall contemporaneously provide Purchaser with information provided to any such Person not previously provided to Purchaser and shall within twenty-four (24) hours if its receipt thereof, notify Purchaser of and provide Purchaser with a copy of such Person’s proposal, including the person making identity of such Takeover Proposal (and its representatives) regarding such Takeover ProposalPerson.

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries Subsidiaries to, or and it shall not authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of and its subsidiaries Subsidiaries’ respective Representatives to, directly or indirectly, : (i) solicitinitiate, initiate solicit or encourageknowingly facilitate or encourage any inquiry or the making of any proposal that constitutes a Takeover Proposal, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information or data or access to its properties with respect to, or otherwise cooperate in with or knowingly take any way with, other action to facilitate any proposal that constitutes any Takeover Proposal. The Company shall, in each case other than a and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal made by Parent; providedand request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of any confidential information previously furnished to such Person in connection therewith. Notwithstanding the foregoing, however, that at any time prior to obtaining the Stockholder ApprovalAcceptance Time, the Board of Directors of the Company mayand its Representatives, in response to a bona fide written Takeover Proposal that such was made after the date of this Agreement and did not result from a material breach of this Agreement and that (1) constitutes a Superior Proposal, or (2) the Board of Directors of the Company determines in good faith is (after consultation with outside counsel and its financial advisor) would reasonably likely be expected to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal Proposal, shall be permitted to: (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject A) provide access to compliance with Section 4.02(c) and (d), (x) furnish non-public information with respect to the Company and its subsidiaries to the person Person making such Takeover Proposal (and its representatives) pursuant to a customary and in accordance with an executed confidentiality agreement, agreement not less restrictive of the other party than the provisions of the Confidentiality Agreement; provided that all such information provided to such Person has previously been provided to Parent or is provided on a to Parent prior to or substantially concurrent basis concurrently with the time it is provided to Parent, such Person; and (yB) participate in discussions or negotiations with the person making respect to such Takeover Proposal (and its representatives) regarding with the Person making such Takeover Proposal.

No Solicitation. (a) The Except as expressly permitted by this Section 5.4, the Company shall, shall not, nor shall it permit any cause each of its subsidiaries affiliates and its and their respective officers, directors and employees to, or authorize or permit any directorand shall use reasonable best efforts to cause the agents, officer or employee financial advisors, investment bankers, attorneys, accountants and other representatives (collectively “Representatives”) of the Company or any of its subsidiaries affiliates to: (A) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any investment bankerpersons that may be ongoing with respect to a Company Takeover Proposal, attorneyand promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, accountant any person that has executed a confidentiality or other advisor non-disclosure agreement within the 36-month period prior to the date of this Agreement in connection with any actual or representative potential Company Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives and (B) until the Company or any Effective Time or, if earlier, the termination of its subsidiaries tothis Agreement in accordance with Article VII, not, directly or indirectly, (i1) solicit, initiate or encourageknowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or take the making of any other action knowingly proposal or offer that constitutes, or could reasonably be expected to facilitatelead to, any a Company Takeover Proposal Proposal, (as defined below2) or (ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with respect toor for the purpose of encouraging or facilitating, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Company Takeover Proposal made by Parent; provided(other than, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, solely in response to a bona fide an unsolicited inquiry, to refer the inquiring person to this Section 5.4 and to limit its conversation or other communication exclusively to such referral), or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belowor oral, binding or nonbinding) or constitutes or is reasonably likely to lead with respect to a Superior Proposal (as defined below), and which Company Takeover Proposal was unsolicited and did not Proposal. Except to the extent necessary to take any actions that the Company or any third party would otherwise result from a breach of be permitted to take pursuant to this Section 4.02, 5.4 (and subject to compliance in such case only in accordance with Section 4.02(c) and (dthe terms hereof), (xA) furnish information with respect to the Company and its subsidiaries Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (1) any standstill provision in any agreement to which the person making such Company or any of its Subsidiaries is a party or (2) any confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party other than, with respect to this clause (2), any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to a Company Takeover Proposal or a potential Company Takeover Proposal and (B) the Company shall, and shall cause its representatives) pursuant to a customary Subsidiaries to, enforce the confidentiality and standstill provisions of any such agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parentand the Company shall, and (y) participate in discussions shall cause its Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than Parent or negotiations with the person making any of Parent’s affiliates, under any such Takeover Proposal (and its representatives) regarding such Takeover Proposalprovisions.

No Solicitation. (a) The Company shall notNone of First Charter, nor shall it permit its Subsidiaries or any of its subsidiaries toofficer, or authorize or permit any director, officer employee, agent or employee of the Company or any of its subsidiaries or representative (including any investment banker, financial advisor, attorney, accountant or other advisor or representative retained representative) of the Company First Charter or any of its subsidiaries to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate or initiate, encourage, facilitate (including by way of furnishing information) or take any other action knowingly designed to facilitatefacilitate any inquiries or proposals regarding any merger, any Takeover Proposal share exchange, consolidation, sale of assets, sale of shares of capital stock (as defined belowincluding by way of a tender offer) or similar transactions involving First Charter or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Alternative Proposal”), (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingregarding an Alternative Transaction, (iii) enter into any agreement regarding any Alternative Transaction or furnish (iv) render the Rights Agreement inapplicable to any person any information with respect to, an Alternative Proposal or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approvaltransactions contemplated thereby. Notwithstanding the foregoing, the First Charter Board of Directors of and its representatives shall be permitted, before the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach approval of this Section 4.02Agreement by First Charter’s shareholders, and subject to compliance with the other terms of this Section 4.02(c) 6.10 and (d)to first entering into a confidentiality agreement with the person proposing such Alternative Proposal on terms substantially similar to, (x) and no less favorable to First Charter than, those contained in the Confidentiality Agreement, to furnish nonpublic information regarding First Charter to a person, and to consider and participate in discussions and negotiations with respect to a bona fide Alternative Proposal received by First Charter and, in connection with such Alternative Proposal, to render inapplicable to such person the Company Rights Agreement, if and its subsidiaries only to the person making such Takeover Proposal extent that and so long as the First Charter Board reasonably determines in good faith (and after consultation with outside legal counsel) that failure to do so would cause it to violate its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalfiduciary duties.

No Solicitation. (a) The Company Such Stockholder shall not, nor not and shall it permit any of cause its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Representatives not to directly or indirectly, if and to the extent prohibited by Section 5.3 of the Merger Agreement (assuming for this purpose that such Stockholder is the “Company”, as such term is defined in the Merger Agreement): (i) solicit, initiate initiate, knowingly facilitate or encourageencourage (including by way of furnishing nonpublic information) any Competing Proposal or Competing Inquiry, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person other Person any information with respect toor afford to any other Person access to the business, properties, assets, books, records or otherwise cooperate in any way with, any Takeover Proposalpersonnel of the Company or its Subsidiaries, in each case other than in connection with or for the purpose of encouraging or facilitating, a Competing Proposal or Competing Inquiry, (iii) approve, endorse, recommend, execute or enter into, or publicly propose to approve, endorse, recommend, execute or enter into any Alternative Acquisition Agreement, (iv) take any action to make the provisions of any Takeover Proposal made Statute (including Section 203 of the DGCL) or any applicable anti-takeover provision in the Company’s organizational documents inapplicable to any transactions contemplated by a Competing Proposal, (v) except at the written request of Parent; provided, howeverterminate, that at amend, release, modify, waive or knowingly fail to enforce any time prior to obtaining the Stockholder Approval, the Board of Directors provision of the Company mayRights Agreement or exempt any Person not affiliated with Parent from the definition of Acquiring Person thereunder, (vi) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar contract entered into by the Company in response respect of or in contemplation of a Competing Proposal (other than to a bona fide written Takeover Proposal that such the extent the Company Board of Directors determines in good faith is faith, after consultation with the Company’s independent financial advisors and outside legal counsel, that failure to take any such actions would be reasonably likely to result in an Adverse Recommendation Change (as defined belowa breach of, or otherwise be inconsistent with, its fiduciary duties under applicable Law) or constitutes (vii) propose, resolve or agree to do any of the foregoing. Such Stockholder shall not and shall cause its Representatives not to directly or indirectly knowingly engage in any conduct prohibited by Section 5.3 of the Merger Agreement (assuming for this purpose that such Stockholder is reasonably likely to lead to a Superior Proposal (the “Company”, as such term is defined belowin the Merger Agreement), . Such Stockholder represents and which Takeover Proposal was unsolicited and did not otherwise result from a breach warrants that such Stockholder has reviewed the terms of this Section 4.02, and subject to compliance 5.3 of the Merger Agreement with Section 4.02(c) and (d), (x) furnish information with respect outside counsel to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company Glyko shall notnot directly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee Representative of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, Glyko directly or indirectly, indirectly to: (i) solicit, initiate initiate, knowingly encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Proposal (as defined below) or Acquisition Proposal; (ii) enter into, continue furnish any confidential information regarding Glyko to any Person in connection with or otherwise participate in any response to an Acquisition Proposal; (iii) engage in discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal; (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise cooperate in relating to any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the Stockholder Approvaladoption and approval of the Arrangement by the Required Glyko Shareholder Vote, Glyko and its Representatives shall not be prohibited by (and shall not be considered to have violated) this Section 6.2(a) from (A) furnishing nonpublic information regarding Glyko to any Person in response to an Acquisition Proposal that is submitted by such Person (and not withdrawn), or (B) entering into discussions with any Person in response to an Acquisition Proposal that is submitted by such Person (and not withdrawn), if (1) in the case of clause (A) above, the Board of Directors of the Company may, in response to Glyko has first made a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely determination that the furnishing of such nonpublic information to result in an Adverse Recommendation Change (as defined below) or constitutes or such Person is reasonably likely to lead to the submission of a Superior Proposal Offer from such Person, (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach 2) neither Glyko nor any Representative of Glyko shall have violated any of the restrictions set forth in this Section 4.02, and subject to compliance with Section 4.02(c) and (d6.2(a), (x3) the Board of Directors of Glyko concludes in good faith, based upon the advice of its outside legal counsel, that the failure to take such action is inconsistent with its fiduciary obligations under applicable law, (4) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Glyko gives BioMarin written notice of the identity of such Person and of Glyko's intention to furnish nonpublic information to, or enter into discussions with, such Person, and Glyko receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Glyko and following which, Glyko keeps BioMarin fully informed with respect to the Company status of any such Acquisition Proposal and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior any modification or substantially concurrent basis to Parentproposed modification thereto, and (y5) participate in discussions or negotiations with prior to furnishing any such nonpublic information to such Person, Glyko furnishes such nonpublic information to BioMarin (to the person making extent such Takeover Proposal (and its representatives) regarding such Takeover Proposalnonpublic information has not been previously furnished by Glyko to BioMarin).

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries Subsidiaries to, or nor shall it authorize or permit (and shall use its best efforts not to permit) any directorofficer, officer director or employee of of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries Subsidiaries to, (i) solicit or any investment bankerinitiate, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries toencourage, directly or indirectly, (i) solicit, initiate any inquiries or encourage, or take any other action knowingly to facilitatethe submission of, any Takeover Proposal (as defined below) or Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information or data with respect to or access to the properties of, or take any other action to knowingly facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal or otherwise cooperate (iii) enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposal; provided, that nothing contained in this Section 6.05 or any way withother provision hereof shall prohibit the Company or the Board from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board, following consultation with outside counsel, is required under applicable Law, provided that the Company may not, except as permitted by Section 6.05(b), withdraw or modify, or propose to withdraw or modify, its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at or enter into any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information agreement with respect to any Takeover Proposal. Upon execution of this Agreement, the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementwill immediately cease any existing activities, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with any parties conducted heretofore with respect to any of the person making such foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Shares for payment pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person or group concerning a Takeover Proposal (and its representatives) regarding such Takeover Proposal.if:

No Solicitation. (a) The Company represents and warrants that it has terminated, and caused its affiliates, and its and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any discussions or negotiations relating to, or that may reasonably be expected to lead to, any Acquisition Proposal and will promptly request the return or destruction of all Confidential Information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements entered into in connection with any such Acquisition Proposal. Except as permitted by this Agreement, the Company shall not, nor and shall it not authorize or permit any of its subsidiaries toofficers, directors or authorize or permit any director, officer or employee of the Company or any of its subsidiaries employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries retained by it to, directly or indirectly, (i) solicit, initiate or encourageencourage (including by way of furnishing non-public information), or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect tonegotiations, or otherwise cooperate communicate in any way withwith any Person (other than Parent or MergerCo), any Takeover regarding an Acquisition Proposal, in each case other than a Takeover or (iii) enter into any agreement, arrangement or understanding regarding an Acquisition Proposal made by Parent; providedor requiring it to abandon, howeverterminate or fail to consummate the Transactions. Notwithstanding the foregoing, that at any time prior to obtaining the Stockholder Approvaldate on which this Agreement is approved by the shareholders of the Company at the meeting referred to in Section 6.3, in response to an Acquisition Proposal that the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines has in good faith concluded (following the receipt of the advice of its outside counsel and its financial advisor) is, or is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and that did not otherwise result from a breach of this Section 4.026.1, and subject to compliance with Section 4.02(c) and (d), the Company may (x) furnish non-public information with respect to the Company and its subsidiaries the Company Subsidiaries to the person making Person who made such Takeover Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, agreement at least as restrictive as the terms contained in the Confidentiality Agreement and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) Person regarding such Takeover Acquisition Proposal, if the Company Board determines in good faith (based on the advice of its outside legal counsel) that failing to take such action would constitute a breach of its fiduciary duties under applicable law.

No Solicitation. (a) The Subject to the provisions of this Section 5.3 set forth below, the Company shall not, agrees that neither it nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee Subsidiary of the Company or any of shall, and that it shall direct and use its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of reasonable best efforts to cause its subsidiaries and their respective Representatives not to, directly or indirectly, (i) solicit, initiate or encourage, knowingly encourage or take knowingly facilitate any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information inquiry with respect to, or otherwise cooperate the making, submission or announcement of, any Alternative Proposal (as hereinafter defined), (ii) enter into or participate in any way withnegotiations with any person (other than Parent and its Representatives) regarding, or furnish any nonpublic information or access to any person (other than Parent and its Representatives) with respect to, any Takeover Alternative Proposal or any inquiry or proposal that could reasonably be expected to lead to an Alternative Proposal, (iii) engage in each case other than a Takeover discussions regarding an Alternative Proposal with any person that has made by Parent; providedor, howeverto the Company’s knowledge, is considering making an Alternative Proposal, except to notify any person that at has submitted an Alternative Proposal as to the existence of the provisions of this Section 5.3, (iv) approve, endorse or recommend or propose to approve, endorse or recommend any time Alternative Proposal or (v) enter into any letter of intent or agreement in principle or any agreement (whether written or oral, binding or nonbinding) providing for any Alternative Proposal (except for confidentiality agreements permitted under Section 5.3(b)). The Company shall immediately cease any discussions or negotiations with any person with respect to an Alternative Proposal or potential Alternative Proposal and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to obtaining the Stockholder Approvaldate of this Agreement) or otherwise request, any Person that has executed a confidentiality or non-disclosure agreement within the twenty four (24)-month period prior to the date of this Agreement in connection with any actual or potential Alternative Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such Person or its Representatives. The Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, (x) any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party or (y) any confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party other than, with respect to clause (x), to the extent the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines concludes in good faith is faith, after consultation with its financial advisors and outside legal counsel, the failure to take such action would be reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalfiduciary duties under applicable Law.

No Solicitation. (a) The Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly shall be deemed to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from be a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 5.4 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company agrees that, during the term of this Agreement, it shall not, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries toor its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to: (i) solicit, initiate initiate, encourage or encouragefacilitate, or take any other action knowingly to facilitatefurnish or disclose non-public information in furtherance of, any Takeover Proposal inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving Company, or acquisition of 10% or more of the capital stock or any material portion of the assets (except as defined belowset forth in Section 5.3(d) to the Company Disclosure Schedule and except for acquisition of assets in the ordinary course of business consistent with past practice) of Company, or any combination of the foregoing ("Company Competing Transaction"); (ii) enter intonegotiate, continue explore or otherwise participate engage in discussions with any discussions person (other than Parent, Subcorp or negotiations regardingtheir respective directors, or furnish officers, A-22 28 employees, agents and representatives) with respect to any person Company Competing Transaction; or (iii) enter into any information with respect toagreement, arrangement or otherwise cooperate in understanding requiring it to abandon, terminate or fail to consummate the Merger or any way with, any Takeover Proposal, in each case other than a Takeover Proposal made transactions contemplated by Parentthis Agreement; provided, however, that at nothing contained in this Section 5.3(d) shall prohibit the Board of Directors of Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to Company than the Confidentiality Agreement) or entering into discussions or negotiations with any time prior person or group that makes an unsolicited bona fide written proposal for a Company Competing Transaction (an "Alternative Proposal"), if, and only to obtaining the Stockholder Approvalextent that, (A) the Board of Directors of Company, based upon the written opinion of outside counsel (a copy of which shall be provided promptly to Parent), determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to shareholders imposed by law, (B) such Alternative Proposal is not conditioned on the receipt of financing, the Board of Directors has reasonably concluded in good faith that the person or group making such Alternative Proposal will have adequate sources of the Company may, in response financing to a bona fide written Takeover consummate such Alternative Proposal and that such Acquisition Proposal is more favorable to the Company's shareholders than the Merger, and the Board of Directors determines has received a written opinion from a nationally-recognized investment banking firm (a copy of which shall be provided promptly to Parent) to the effect that the consideration to be received by shareholders of Company in good faith connection with such Alternative Proposal is reasonably likely superior, from a financial point of view, to result the consideration to be received by them in an Adverse Recommendation Change the Merger, (as defined belowC) prior to furnishing such information to, or constitutes entering into discussions or negotiations with, such person or entity, Company provides written notice to Parent to the effect that it is reasonably likely to lead to a Superior Proposal (as defined below)furnishing information to, or entering into negotiations with, such Person, and which Takeover Proposal was unsolicited (D) Company keeps Parent informed of the status and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish all material information with respect to the Company and its subsidiaries to the person making any such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior discussions or substantially concurrent basis to Parentnegotiations, and (yii) participate in discussions or negotiations to the extent applicable, complying with Rule 14e-2 promulgated under the person making such Takeover Proposal Exchange Act with regard to an Alternative Proposal. (and its representatives) regarding such Takeover Proposal.e)

No Solicitation. (a) The Company COMPANY shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party (i) solicit, initiate or encourageinitiate, or take encourage any other action knowingly inquiries or proposals that constitute, or could reasonably be expected to facilitatelead to, a proposal or offer for a merger, consolidation, business combination, sale or transfer of substantial assets, sale of any Takeover Proposal shares of capital stock (as defined belowincluding without limitation by way of a tender offer) or similar transaction involving it or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) enter intoengage in negotiations or discussions concerning, continue or otherwise participate provide any non-public information to any person or entity relating to, any Acquisition Proposal, or (iii) agree to or recommend any Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in any this Agreement shall prevent the COMPANY or its Board of Directors, from (A) furnishing non-public information, or entering into discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposalperson or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity or recommending an unsolicited bona fide written Acquisition Proposal to its stockholders, in each case other than a Takeover Proposal made by Parent; provided, however, if and only to the extent that at any time prior to obtaining the Stockholder Approval, (1) the Board of Directors of the Company may, COMPANY believes in response to a bona fide written Takeover Proposal good faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and, after taking into account the strategic benefits anticipated to be derived from the Merger and the long-term prospects of the COMPANY and BUYER as a combined company, would, if consummated, result in a transaction more favorable over the long term than the transaction contemplated by this Agreement and the COMPANY's Board of Directors determines in good faith after consultation with outside legal counsel that such action is reasonably likely necessary for such Board of Directors to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely comply with its fiduciary duties to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) stockholders under applicable law and (d)2) prior to furnishing such non-public information to, (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in entering into discussions or negotiations with, such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms no more favorable to such party than those contained in the person making such Takeover Proposal Confidentiality Agreements; or (and its representativesB) regarding such Takeover complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee None of the Company or any of its subsidiaries Parent (each, a “No-Shop Party”) or their respective Subsidiaries or any investment banker, attorney, accountant or other advisor or representative Representative of the Company such No-Shop Party or any of its subsidiaries to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate initiate, knowingly encourage or encourageknowingly facilitate, directly or indirectly (including by way of furnishing non-public information), or take any other action knowingly designed to facilitate, any Takeover Proposal inquiry or proposal regarding an Alternative Transaction involving such No-Shop Party or any of its Subsidiaries (as defined below) or an “Acquisition Proposal”); (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingregarding an Alternative Transaction; or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, or furnish a No-Shop Party shall be permitted, prior to any person any information the obtaining of the Stockholder Approval of such No-Shop Party, and subject to first entering into a confidentiality agreement with respect the Person proposing such Acquisition Proposal on terms substantially similar to, or otherwise cooperate and no less favorable to such No-Shop Party than, those contained in any way withthe Confidentiality Agreement, any Takeover Proposalto (i) furnish information (including non-public information) concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and afford such Person and its Representatives access to the business, in each case other than a Takeover Proposal made by Parentproperties, assets, Contracts, officers, employees, books and records of such No-Shop Party and its Subsidiaries; provided, however, that at such No-Shop Party shall substantially concurrently with the delivery to such Person provide to the Other Party any time prior non-public information or access that is provided or made available to obtaining such Person or its Representatives unless such information or access has been previously been provided or made available to the Stockholder Approval, the Board of Directors of the Company mayOther Party; and (ii) consider and participate in discussions and negotiations with respect to such Acquisition Proposal received by such No-Shop Party, in response each case, if and only to a the extent that (A) such Acquisition Proposal is an unsolicited, bona fide written Takeover Acquisition Proposal that made after the date of this Agreement; (B) such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Acquisition Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d6.11(a), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (yC) participate the Board of such No-Shop Party reasonably determines in discussions good faith (after consultation with outside legal counsel) that such Acquisition Proposal is, or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover is reasonably likely to lead to, a Superior Proposal.

No Solicitation. (a) The Company shall not, agrees that neither it nor shall it permit any of its subsidiaries toofficers and managers shall, or authorize or permit any directorand that it shall use its reasonable best efforts to cause its employees, officer or employee of the Company or any of its subsidiaries or agents and representatives (including any investment banker, attorney, attorney or accountant or other advisor or representative of the Company or retained by it) not to (and shall not authorize any of its subsidiaries them to, ) directly or indirectly, : (i) solicit, initiate or initiate, encourage, knowingly facilitate or take induce any other action knowingly to facilitateinquiry with respect to, or the making, submission or announcement of, any Takeover Proposal (as defined below) or Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal, (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal or transaction contemplated thereby, or (vi) without limiting the generality of the Company’s obligations contained in Section 4.1(s), grant any waiver or release under any standstill or similar agreement with respect to any equity interests of the Company. The Company will immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. Notwithstanding any other than a Takeover Proposal made by Parent; providedprovision in this Section 4.2(a), however, that at any time prior to obtaining the Stockholder ApprovalCompany Members’ Meeting, and subject to compliance with the other terms of this Section 4.2 and to first entering into a confidentiality agreement having provisions that are no less favorable to Company than those contained in the Confidentiality Agreement, the Board of Directors Managers of the Company mayshall be permitted to engage in discussions or negotiations with, or provide any nonpublic information or data to (provided that such information or data also is simultaneously given to Parent to the extent not previously given to Parent), any Person in response to a an unsolicited bona fide written Takeover proposal for an Acquisition Proposal that by such Person first made after the date hereof which the Board of Directors determines Managers of Company concludes in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belowafter consultation with its financial advisor and outside legal counsel) or constitutes or is reasonably likely to lead to constitute a Superior Proposal, if and only to the extent that the Board of Managers of Company reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would be inconsistent with its fiduciary duties under applicable law; provided, that Company and the Board of Directors of Managers shall have given Parent (orally and in writing) at least 48 hours prior notice of its intent to do so before taking any such action; provided, further, that the Company and the Board of Managers shall keep Parent informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis; provided, further, that the Board of Managers shall not recommend any Superior Proposal (to the members of the Company Stock except as defined below)permitted under Section 5.2, and which Takeover only after the Company shall first have complied with the procedures set forth in such Section. For purposes of this Agreement, “Superior Proposal” shall mean a bona fide, unsolicited written proposal for an Acquisition Proposal was unsolicited and that did not otherwise result arise from a breach of Section 4.2 (substituting for this Section 4.02purpose 80% for each reference to 10% in the definition of Acquisition Proposal) that the Board of Managers concludes in good faith, after consultation with its financial advisor and subject its outside legal counsel, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal as permitted under applicable law (i) is more favorable to compliance with Section 4.02(c) the Company’s members from a financial point of view, than the transactions contemplated by this Agreement and (d), (xii) furnish information with respect is fully financed and reasonably likely to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that receive all such information is provided required governmental approvals on a prior or substantially concurrent timely basis to Parent, and (y) participate in discussions or negotiations with otherwise reasonably capable of being completed on the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.terms

No Solicitation. (a) The Company shall notagrees that, for a period commencing on the date hereof and ending on February 28, 2003 (the "Exclusivity Period"), neither the Company nor shall it permit any of its subsidiaries torepresentatives, directors, officers, stockholders, agents or authorize or permit any directoraffiliates (collectively, officer or employee of the "Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, Representatives") will (i) solicit, initiate entertain or encourage, or take discuss any Acquisition Proposal with any other action knowingly party or provide any information to facilitateany other party in connection therewith, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish disclose to any person any information with respect toother party the contents of this Agreement or the details of the transactions contemplated herein, except for such disclosure required by law or otherwise cooperate contained in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parentthe Proxy Statement; provided, however, that at nothing contained in this Agreement shall prohibit the Board of Directors of the Company or Company Representatives from furnishing information to or entering into discussions or negotiations with any time person or group that makes an unsolicited written, bona fide Acquisition Proposal, if, and only to the extent that (i) the Board of Directors of the Company determines in good faith by a majority vote, after consultation with a nationally reputed financial advisor and with independent legal counsel that such proposal is, or is reasonably likely to lead to, a Superior Proposal, (ii) the Board of Directors of the Company determines in good faith by a majority vote after consultation with its outside legal counsel that the failure to negotiate, or otherwise engage in discussions, with such third party would be inconsistent with the Board's fiduciary duties under applicable law, and (iii) such person or group, prior to obtaining the Stockholder Approvaldisclosure of any non-public information, enters into a confidentiality agreement with the Company that is not, in any material respect, less restrictive as to such person or group than the confidentiality restrictions imposed on the Buyers pursuant to Section 4(f), that contains a standstill restriction prohibiting such third party and its affiliates from acquiring more than five percent (5%) of the Company's outstanding Common Stock, and that does not contain exclusivity provisions which would prevent the Company from complying with its obligations hereunder. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4(i) by any Company Representative, whether or not such person is purporting to act on behalf of the Company or its directors or otherwise, shall be deemed to be a breach of this Section 4(i) by the Company. Except as expressly permitted by this Section 4(i), the Board of Directors of the Company may(or any other committee thereof) shall not (i) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (ii) cause the Company to accept such Acquisition Proposal and/or enter into any letter of intent, agreement in response principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to a bona fide written Takeover Proposal any Acquisition Proposal; provided, however, that such the Board of Directors of the Company may take such actions if, and only to the extent that (A) such Acquisition Proposal is a Superior Proposal, (B) the Board of Directors of the Company determines in good faith by a majority vote, after consultation with its outside legal counsel, that the failure to do so would be inconsistent with the fiduciary duty of the Board of Directors of the Company under applicable law, (C) the Company is reasonably likely to result not in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.024(i), and subject to compliance with Section 4.02(c(D) and in the case of clause (d)ii) above, (xI) furnish information the Company shall, prior to or simultaneously with respect the taking of such action, have paid or pay to the Buyers or their designee the break-up fee (including payment of Buyers' transaction costs and expenses) set forth in Section 4(j)(ii) below, (II) the Company shall, prior to or simultaneously with the taking of such action, have repaid or repay to Hammer and WAG Holdings the aggregate outstanding principal balance of all loans made to the Company and its subsidiaries or ecom pursuant to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementLoan Agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parenttogether with any accrued but unpaid interest thereon, and (yIII) participate in discussions the Company shall have complied with its obligations under Section 9(e). In addition, the Company agrees that it will inform the Buyers of, and provide the Buyers with information regarding, any Acquisition Proposal or negotiations with other offers or expressions of interest for the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company During the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Israel time) on July 9, 2010 (the "Solicitation Period End Date"), the Company, its Subsidiaries, and their respective Representatives shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of have the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries right to, directly or indirectly, indirectly (i) solicit, initiate or encourageencourage any inquiry with respect to, or the making, submission or announcement of, a written Acquisition Proposal by any Person (other than such Person(s) as may be agreed in writing or electronic mail between the parties), and (ii) participate in discussions or negotiations regarding, and furnish to any such Person information with respect to, and take any other action knowingly to facilitatefacilitate any inquiries or the making of any such Acquisition Proposal; provided, however, that (x) the Company shall provide to Parent, promptly upon receipt of such Acquisition Proposal, a written notice specifying all the terms and conditions thereof (other than the name of the Person making such Acquisition Proposal or identifying information with respect to such Person) and (y) the Company shall not, and shall not authorize or permit any Takeover Proposal of its Subsidiaries or any Representative of the Company or its Subsidiaries to, provide to any Person any non-public information unless the Company receives (or has received prior to the date hereof) from such Person an executed confidentiality agreement with confidentiality provisions in form no more favorable, in the aggregate, to such Person than those confidentiality provisions contained in the Confidentiality Agreement; provided further that (A) the Company shall promptly (or, if provided by way of posting such materials on the virtual data room, simultaneously) provide to Parent any non-public information concerning the Company or its Subsidiaries that is provided to such Person given such access but which was not previously provided to Parent and its Representatives and (B) other than with respect to information of the type set forth in Section 6.5(a) of the Company Disclosure Schedule (including updates thereto), whose disclosure shall in any event require confidentiality agreement as defined belowdescribed in clause (y) above, and discussions or presentations of the same by the Company and/or its Representatives, the Company and its Representatives shall not provide or make available to any Person (iidirectly, through access to virtual data room or otherwise) enter into, continue any non-public information concerning the Company or otherwise its Subsidiaries and shall not participate in any discussions or negotiations regardingconcerning an Acquisition Proposal, or furnish to any person any except for provision of such information with respect to, or otherwise cooperate and participation in any way negotiations and discussions with, any Takeover Proposala Person that made a bona fide written Acquisition Proposal that meets, on its face (and without the need for independent verification by the Company or a determination of the Board of Directors of the Company), all the conditions set forth in clauses (a), (b), (c) and (d) in the definition of Superior Proposal (or, in each case other than a Takeover the event that such Acquisition Proposal made by Parent; provided, however, does not state explicitly that at any time prior to obtaining it meets the Stockholder Approvalcondition set forth in clause (b) in the definition of Superior Proposal, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith that such condition is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior be fulfilled); it being understood that such Acquisition Proposal (as defined below), may be non-binding and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalpending due diligence.

No Solicitation. (a) The Notwithstanding any provision in this Agreement to the contrary, the Company shall not, nor shall it authorize or permit any of its subsidiaries Subsidiaries to, or nor shall it authorize or permit any director, officer or employee of the Company or any of its subsidiaries Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiaries to, directly or indirectlyindirectly (and it shall instruct and cause each applicable Subsidiary, if any, to instruct each such director, officer, employee, investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries not to), (i) solicit, initiate or knowingly encourage, or knowingly take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any confidential information with respect that could reasonably be expected to lead to, or otherwise knowingly cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, in response to a bona fide unsolicited written Takeover Proposal that the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is could reasonably likely be expected to lead to a Superior Proposal (as defined below)Proposal, and which unsolicited Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.024.02 or any other provision of this Agreement, the Company may, and may permit and authorize its Subsidiaries and its representatives and advisors and its Subsidiaries’ representatives and advisors to, in each case subject to compliance with Section 4.02(c) and (d)the other provisions of this Agreement, (xA) furnish information with respect to the Company and its subsidiaries Subsidiaries to the person making such Takeover Proposal (and its representativesrepresentatives and advisors) pursuant to a customary confidentiality agreementagreement which contains terms that are no less restrictive than those contained in the Agreement for Exchange of Confidential Information, Agreement Number WH15001, dated as of May 27, 2015 between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information had been provided or made available, or is substantially concurrently provided on a prior or substantially concurrent basis made available, to Parent, and (yB) participate in discussions or negotiations with with, and only with, the person making such Takeover Proposal (and its representativesrepresentatives and advisors) regarding such Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or officer of the Company or any of its Subsidiaries, any employee of the Company or any of its Subsidiaries that executed an Offer Letter on or prior to the date hereof or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.02(a) by the Company.

No Solicitation. (a) The Company shall From and after the date of this Agreement until the effective time of the First Merger or termination of this Agreement pursuant to Article VIII, Pathlore and its Subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, affiliates or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, indirectly (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitatePathlore Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Pathlore Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Pathlore Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Pathlore Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Pathlore Acquisition Transaction; provided, however, that at any time prior to obtaining until the Stockholder Approval, date on which this Agreement is approved by the Board of Directors required vote of the Company mayPathlore Stockholders, this Section 5.6(a) shall not prohibit Pathlore from furnishing information regarding Pathlore and its Subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any person or group in response to a bona fide written Takeover Proposal Pathlore Superior Offer submitted by such person or group (and not withdrawn) to the extent and so long as (1) neither Pathlore nor any representative of Pathlore and its Subsidiaries shall have violated any of the restrictions set forth in this Section 5.6(a) in connection with such Pathlore Superior Offer, (2) the Pathlore Board concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Pathlore Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change comply with its fiduciary obligations to the Pathlore Stockholders under applicable law, (as defined below3) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) at least one (1) Business Day prior to furnishing any such information to, or entering into discussions or negotiations with, such person or group, Pathlore gives SumTotal written notice of the identity of such person or group and of Pathlore’s intention to furnish information with respect to the Company and its subsidiaries to the to, or enter into discussions or negotiations with, such person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, group and (y) participate in Pathlore receives from such person or group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement, and (4) contemporaneously with furnishing any such information to such person or group, Pathlore furnishes such information to SumTotal (to the extent such information has not been previously furnished by Pathlore to SumTotal). Pathlore and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Pathlore Acquisition Proposal. In addition to the person making foregoing, Pathlore shall (i) provide SumTotal with at least forty-eight (48) hours prior written notice (or such Takeover lesser prior written notice as provided to the members of the Pathlore Board but in no event less than eight hours) of any meeting of the Pathlore Board at which the Pathlore Board is reasonably expected to consider a Pathlore Acquisition Proposal and (ii) provide SumTotal with at least three (3) Business Days prior written notice of a meeting of the Pathlore Board at which the Pathlore Board is reasonably expected to recommend a Pathlore Superior Offer to the Pathlore Stockholders and its representatives) regarding together with such Takeover Proposalnotice a copy of the definitive documentation relating to such Pathlore Superior Offer.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any director, officer of their respective officers or employee of the Company or any of its subsidiaries directors or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, nor will they authorize any of their respective employees or affiliates to, nor will they fail to take reasonable measures to cause their respective employees not to, directly or indirectly, indirectly (i) solicit, solicit or initiate or encourageknowingly encourage or induce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or ), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or knowingly furnish to any person any information with respect to, or otherwise cooperate in knowingly take any way withother action that would reasonably be expected to lead to, any Takeover Acquisition Proposal, in each case other than a Takeover (iii) approve, endorse or recommend any Acquisition Proposal made by Parentwithout complying with Section 5.2(c) or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment providing for any Acquisition Transaction (as defined below); provided, however, that this Agreement shall not prohibit Company or any of its officers, directors, affiliates, employees, investment bankers, attorneys or other advisors or representatives from (A) at any time prior to obtaining the Stockholder Approvaladoption of this Agreement by Company's stockholders, furnishing information regarding Company to, entering into a confidentiality agreement with, entering into discussions or negotiations with, or entering into a definitive acquisition agreement with any person or group in response to a Superior Offer submitted by such person or group (and not withdrawn) if (1) neither Company nor any representative of Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 5.4 prior to and in connection with such Acquisition Proposal, (2) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to Company's stockholders under applicable law, (as defined below3) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish at least forty-eight (48) hours prior to furnishing any such information to, entering into a confidentiality agreement with respect or entering into discussions or negotiations with, such person or group, Company gives Parent written notice of the identity of such person or group and of Company's intention to take such action and (y) Company receives from such person or group an executed agreement with confidentiality provisions at least as restrictive as the Confidentiality Agreement, and (4) contemporaneously with furnishing any such information to such person or group, Company furnishes such information to Parent (to the extent such information has not been previously furnished by Company to Parent) or (B) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or furnishing a copy or excerpts of this Agreement (excluding, however, the Company Schedule and the Parent Schedule) to any person. Company and its subsidiaries to the person making such Takeover Proposal (will immediately cease any and its representatives) pursuant to a customary confidentiality agreementall existing activities, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. In addition to the person making foregoing, Company shall (i) provide Parent with at least twenty-four (24) hours prior notice (or such Takeover Proposal lesser prior notice as provided to the members of Company's Board of Directors) of any meeting of Company's Board of Directors at which Company's Board of Directors is reasonably expected to consider a Superior Offer and (ii) provide Parent with at least two (2) business days prior written notice (or such lesser prior notice as provided to the members of Company's Board of Directors) of a meeting of Company's Board of Directors at which Company's Board of Directors is reasonably expected to recommend a Superior Offer to its stockholders and its representatives) regarding together with such Takeover Proposalnotice a copy of any definitive documentation relating to such Superior Offer.

No Solicitation. (a) The Company and each of its Subsidiaries and affiliates shall not, nor shall it permit directly or indirectly, through any of its subsidiaries toofficer, or authorize or permit any director, officer employee, representative or employee agent of the Company or any of its subsidiaries or any investment bankerSubsidiaries (and it shall use reasonable efforts to cause such officers, attorneydirectors, accountant or other advisor or representative of the Company or any of its subsidiaries employees, representatives and agents not to, directly or indirectly), (i) solicit, initiate initiate, resume, facilitate or encourageencourage any inquiries or proposals that constitute, or take any other action knowingly could reasonably be expected to facilitatelead to, any Takeover an Acquisition Proposal (as defined below) or (ii) enter into, continue engage in negotiations or otherwise participate in any discussions or negotiations regardingconcerning, or furnish provide any non-public information to any person any information with respect or entity relating to, or otherwise cooperate in any way with, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that if, at any time prior to obtaining the Stockholder Approvaldate of the Company Stockholders Meeting (the “Applicable Period”), the Board of Directors of the Company determines in good faith, after receiving the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the Company’s stockholders under applicable law, the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowin Section 6.2(b), ) which was not solicited by it and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.026.2(a), and subject to providing prior written notice of its decision to take such action to Parent (a “Section 6.2 Notice”) and compliance with Section 4.02(c) and (d6.2(c), (x) furnish information with respect to the Company and its subsidiaries Subsidiaries to the any person making such Takeover a Superior Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior agreement containing terms no less favorable to the Company (including with respect to standstill or substantially concurrent basis to Parent, other provisions) than the Confidentiality Agreement and permitting the disclosure contemplated by this Section 6.2 and (y) participate in discussions or negotiations with regarding such Superior Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the person making such Takeover Proposal (net revenues, net income or the assets of the Company and its representatives) regarding such Takeover ProposalSubsidiaries, taken as a whole, or 25% or more of any class of equity securities of the Company or any of its Subsidiaries, any tender offer or exchange offer that, if consummated, would result in any person beneficially owning 25% or more of any class of equity securities of the Company or any of its Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement.

No Solicitation. (a) The Company shall not, nor and shall it permit any of its subsidiaries to, or not authorize or permit any directorofficer, officer director or employee of the Company or any of its subsidiaries of, or any investment banker, attorney, accountant attorney or other advisor advisor, agent or representative of of, the Company or any ("COMPANY REPRESENTATIVES") to, and on becoming aware of its subsidiaries will take all reasonable actions to stop such person from continuing to, directly or indirectly, (i) solicit, initiate or encourage, encourage or take otherwise intentionally facilitate (including by way of furnishing information) the making of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or ), (ii) enter intointo any agreement (other than confidentiality and standstill agreements in accordance with the immediately following proviso) with respect to any Acquisition Proposal, continue or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in take any way withother action to intentionally facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior in the case of this clause (iii), to obtaining the Stockholder Approval, extent reasonably believed to be required by the fiduciary obligations of the Board of Directors of the Company, determined in good faith by the members thereof, after consultation with outside legal counsel, the Company maymay at any time prior to Company Stockholder Approval, but not thereafter if the Merger is approved thereby, and subject to the Company providing written notice to Parent of its decision to take such action in response and only in response to a bona fide an unsolicited written Takeover Proposal request therefor received by the Company or any Company Representative that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (dSECTION 8.2(a)), (xA) furnish information with respect to any person or "group" (within the Company and its subsidiaries to meaning of Section 13(d)(3) of the person making such Takeover Proposal (and its representativesExchange Act) pursuant to a customary confidentiality agreement, agreement on substantially the same terms as provided that all such information is provided on a prior or substantially concurrent basis in the Confidentiality Agreements referred to Parent, in SECTION 5.2(b) hereof and (y) participate in otherwise enter into discussions or and negotiations with such person or group as to any superior proposal (as defined in SECTION 8.2(c)) such person or group has made, or any Acquisition Proposal made by such person or group that the person making such Takeover Board of Directors in good faith determines is reasonably likely to lead to a superior proposal. The Company immediately shall cease and shall cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted prior to the date hereof by the Company or any Company Representatives with respect to any Acquisition Proposal existing on the date hereof. For purposes of this Agreement, "ACQUISITION PROPOSAL" means (and i) any proposal, other than a proposal by Parent or any of its representativesaffiliates, for a merger or other business combination involving the Company, (ii) regarding such Takeover Proposalany proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the Company or any of its affiliates in any manner, directly or indirectly, more than a 20% equity interest in the Company, more than 20% of the voting securities of the Company or a material amount of the assets of the Company, or (iii) any proposal or offer, other than a proposal or offer by Parent or any of its affiliates, to acquire from the stockholders of the Company by tender offer, exchange offer or otherwise more than 20% of the outstanding Company Shares.

No Solicitation. (a) The From the date hereof until the termination hereof, the Company shall not, agrees that neither it nor shall it permit any of its subsidiaries Subsidiaries nor any of the officers or directors of it or any of its Subsidiaries shall, and that it shall direct and use its best reasonable efforts to cause its and its Subsidiaries' officers, directors, employees, investment bankers, consultants and other agents not to, directly or authorize indirectly, take any action to solicit, initiate, encourage or permit facilitate the making of any directorAcquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any person with respect thereto, officer or employee disclose any non-public information relating to the Company or any of its Subsidiaries, as the case may be, or afford access to the properties, books or records of the Company or any of its subsidiaries or Subsidiaries to any investment bankerperson that has made any Acquisition Proposal; provided, attorneythat nothing contained in this Section 5.05 shall prevent the Company, accountant or other advisor or representative of the Company or any of its subsidiaries after providing prior notice thereof to Buyer that it is taking such action, from furnishing non-public information to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any entering into discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, person in each case other than a Takeover connection with an unsolicited bona fide Acquisition Proposal made by Parent; provided, however, received from such person that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to could lead to a Superior Proposal Proposal, so long as (as defined below)i) the Company has received prior to the date hereof an executed confidentiality agreement or prior to furnishing non-public information to, and which Takeover Proposal was unsolicited and did not otherwise result or entering into discussions or negotiations with, such person, the Company receives from a breach of this Section 4.02, and subject to compliance such person an executed confidentiality agreement with Section 4.02(c) and (d), (x) furnish information with respect terms no less favorable to the Company than those contained in the Parent Confidentiality Agreement and (ii) the Company Board determines in good faith, based on such matters that it deems relevant, including the advice of independent legal counsel, that such action is necessary for the Company Board to comply with its subsidiaries fiduciary duties to the person making such Takeover Proposal (and Company's shareholders under applicable law; provided, further, that nothing contained in this Agreement shall prevent the Company or its representatives) pursuant board of directors from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover an Acquisition Proposal.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, affiliates or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or hereinafter defined), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or otherwise cooperate in take any way with, other action to facilitate any Takeover inquiries or the making of any Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that at any time notwithstanding the foregoing, prior to obtaining the Stockholder Approvalapproval of this Agreement and the Merger at the Company Stockholders' Meeting, this Section 5.4(a) shall not prohibit Company from furnishing nonpublic information regarding Company and its subsidiaries to, or entering into discussions or negotiations with, any person or group who has submitted (and not withdrawn) to Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of Company reasonably concludes (based on the Company may, in response to written advice of a bona fide written Takeover Proposal that such Board financial advisor of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belownational standing) or constitutes or is reasonably likely to lead to may constitute a Superior Proposal Offer if (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach 1) neither Company nor any representative of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 5.4, (2) the Board of Directors of Company concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of Company to comply with its fiduciary obligations to Company's stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such person or group, Company gives Parent written notice of the identity of such person making or group and all of the material terms and conditions of such Takeover Acquisition Proposal (and its representatives) pursuant of Company's intention to a customary confidentiality agreementfurnish nonpublic information to, provided that all or enter into discussions with, such information is provided on a prior person or substantially concurrent basis to Parentgroup, and (y) participate in discussions Company receives from such person or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.group an executed

No Solicitation. (a) The Company shall, and shall cause each of its Subsidiaries, and shall cause their respective officers, directors, representatives and agents (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, “Company Representatives”) to, (i) immediately cease any existing discussions or negotiations, if any, with any third Person that may be ongoing with respect to any actual or potential Acquisition Proposal and (ii) with respect to parties with whom discussions have been terminated, the Company shall use its reasonable best efforts to obtain the return or the destruction of, in accordance with the terms of the applicable confidentiality agreement, confidential information previously furnished by the Company, its Subsidiaries or Company Representatives. The Company and its Subsidiaries shall not, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Representative to, directly or indirectly, (i) solicit, initiate or encourageknowingly encourage an Acquisition Proposal, (ii) furnish or take disclose to any other action knowingly third Person non-public information with respect to facilitatean Acquisition Proposal, (iii) negotiate or engage in discussions with any Takeover third Person with respect to an Acquisition Proposal (as defined belowother than to advise such Person of the Company’s obligations under this Section 5.10) or (iiiv) enter into, continue into any agreement (whether or otherwise participate not binding) or agreement in any discussions or negotiations regarding, or furnish to any person any information principle with respect to, or otherwise cooperate in any way withapprove or recommend, any Takeover an Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors approval of the Merger by the Company mayRequired Vote (but not thereafter), in response to a bona fide written Takeover Acquisition Proposal that such was not solicited by the Company or any of its Representatives and which the Company Board of Directors determines in good faith is faith, after consulting with its financial advisors and outside legal counsel, constitutes, or could reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely be expected to lead to to, a Superior Proposal Proposal, the Company may (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (xA) furnish information with respect to the Company Company, its Subsidiaries and its subsidiaries the Affiliated Medical Practices to the person Person making such Takeover Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent), and (yB) participate in discussions or negotiations with with, and provide draft documents and agreements to, the person Person making such Takeover Acquisition Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Takeover Acquisition Proposal, if (prior to furnishing such information to, or entering into such discussions or negotiations with, such Person) the Company (1) provides reasonable prior notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person (but excluding the identity of such Person), (2) provides Parent with all information to be provided to such Person which Parent has not previously been provided, and (3) receives from such Person an executed confidentiality agreement reasonably satisfactory to the Company Board and with terms substantially similar to and no less favorable to the Company, in the aggregate, than those contained in the Confidentiality Agreement.

No Solicitation. (a) The Company shall not, nor shall it authorize or permit any of its subsidiaries Company Subsidiary to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries Company Subsidiary or any investment banker, financial advisor, attorney, accountant or other advisor advisor, agent or representative (collectively, Representatives) of the Company or any of its subsidiaries Company Subsidiary to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, facilitate the submission of any Takeover Proposal (as defined below) ), or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect toto or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or otherwise cooperate in any way withwould reasonably be expected to lead to, any Takeover ProposalProposal or (iii) make or authorize any statement, recommendation or solicitation in respect of any Takeover Proposal (except as provided in Section 2.2(b)). The Company shall, and shall cause each of the Company Subsidiaries and each Representative of the Company or any Company Subsidiary to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person conducted heretofore with respect to any proposal that constitutes or would reasonably be expected to lead to a Takeover Proposal and (B) request the prompt return or destruction of all confidential information previously furnished to any third party, in each case case, to the extent applicable, in accordance with the terms of any confidentiality, non-disclosure or other than similar agreement to which the Company or Company Subsidiary is a Takeover Proposal made by Parent; providedparty. The Company shall, howeverand shall cause each Company Subsidiary and its and their Representatives to, that enforce (and not release any person from any obligation under) any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party. Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, the Board of Directors closing of the Offers, if the Company may, in response to has received a bona fide written Takeover Proposal that such the Company Board of Directors determines in good faith (after consultation with outside counsel and an independent financial advisor of internationally recognized reputation) is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), ) and which Takeover Proposal that was unsolicited not solicited by the Company or its Representatives and that did not otherwise result from a breach or a deemed breach of this Section 4.022.2(a), and the Company Board determines in good faith (by a majority vote of its members after consultation with outside counsel) that the failure to take the following actions would be inconsistent with its fiduciary duties under applicable Law, subject to providing prior written notice of its decision to take such action to Purchaser and compliance with Section 4.02(c) and (d2.2(c), the Company may: (x1) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) such person’s Representatives pursuant to a customary confidentiality agreementagreement not less restrictive (including as to standstill provisions) of the other party than the confidentiality agreement dated August 29, 2007 between the Company and Purchaser (the Confidentiality Agreement), provided that all such information not previously provided to Purchaser is provided or made available on a prior or substantially concurrent basis to Parent, Purchaser and (y2) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any director, officer, employee or Representative of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 2.2(a) by the Company.

No Solicitation. After the No-Shop Period Start Date, no Stockholder (a) The Company shall not, nor shall it permit any of in its subsidiaries to, or authorize or permit any director, officer or employee capacity as a stockholder of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, Company) shall (i) solicit, initiate initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or take any other action knowingly to facilitateassist, any Takeover Proposal (as defined below) proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person (other than to Parent or any designees of Parent) any non-public information with respect torelating to the Company Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or otherwise cooperate in to any way withpersonnel, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company mayGroup (other than Parent or any designees of Parent), in response any such case with the intent to a bona fide written Takeover Proposal induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes constitutes, or is reasonably likely expected to lead to, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to a Superior Proposal an Acquisition Proposal; (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (yiii) participate or engage in discussions or negotiations with the person making such Takeover any Person with respect to an Acquisition Proposal (other than informing such Persons of the provisions contained in this Section 3.2 and its representativescontacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); provided that each Stockholder may participate in discussions and negotiations with any Person with whom the Company Board (or the Special Committee of the Company Board) regarding is engaging in discussions and negotiations pursuant to and in compliance with Section 5.3 of the Merger Agreement, solely for the purpose of entering into a voting agreement with such Takeover Proposalparty on substantially similar terms to the terms hereof.

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries to, or nor shall it authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, encourage any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with, or assist or participate in any effort or attempt by any person with respect to, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, provided that at any time prior to obtaining the Stockholder ApprovalSpecified Date, the Board of Directors of the Company may, in response to a Superior Proposal (as defined below) or a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowa "Likely Superior Proposal"), and which Takeover Proposal in each case that was unsolicited and did not otherwise result from a breach of this Section 4.02unsolicited, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Superior Proposal or Likely Superior Proposal (and its representatives) pursuant to a customary confidentiality agreementagreement (which confidentiality agreement contains terms that are no less favorable to the Company than the terms of the Confidentiality Agreement dated December 4, 2000, between Compass and the Company (as it may be amended from time to time, the "Confidentiality Agreement")) provided that all such information is provided on a prior or substantially concurrent current basis to Parent, Compass; and (y) participate in discussions or negotiations with the person making such Takeover Superior Proposal or Likely Superior Proposal (and its representatives) regarding such Takeover Superior Proposal or Likely Superior Proposal.

No Solicitation. (a) The Neither the Company shall not, nor shall it permit any of its subsidiaries Subsidiaries shall (and the Company shall use its best efforts to cause its officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants, not to), directly or authorize indirectly, encourage, solicit, participate in or permit initiate discussions or negotiations with, or provide any directorinformation to, officer any corporation, partnership, person or employee other entity or group (other than Parent, any of its affiliates or representatives) concerning any proposal or offer to acquire all or a substantial part of the business and properties of the Company or any of its subsidiaries Subsidiaries or any investment banker, attorney, accountant or other advisor or representative capital stock of the Company or any of its subsidiaries toSubsidiaries, directly whether by merger, tender offer, exchange offer, sale of assets or indirectlysimilar transactions involving the Company or any Subsidiary, division or operating or principal business unit of the Company (an "Acquisition Proposal"), except that nothing contained in this Section 5.6 or any other provision hereof shall prohibit the Company or the Company's Board from (i) solicittaking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter intomaking such disclosure to the Company's stockholders as, continue in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as permitted by Section 5.6(b), withdraw or otherwise participate in any discussions or negotiations regardingmodify, or furnish propose to any person any information with respect towithdraw or modify, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information its position with respect to the Offer or the Merger or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. The Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementwill immediately cease any existing activities, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company also shall promptly request each person making which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company to return all confidential information heretofore furnished to such Takeover Proposal (and its representatives) regarding such Takeover Proposalperson by or on behalf of the Company.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Company shall and its subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, controlled affiliates or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, (i) solicit, initiate initiate, induce or encourageknowingly encourage the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or ), (ii) enter into, continue or otherwise participate in any discussions or negotiations with a third party regarding, or furnish to any person any information with respect to, or otherwise cooperate in take any way withother action to knowingly facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, however, that at any time prior to obtaining the Stockholder Approval, nothing contained in this Section 5.4 shall prohibit the Board of Directors of Company from (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Company may, Exchange Act or (ii) in response to a an unsolicited, bona fide written Takeover Acquisition Proposal that such Company's Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or concludes constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such Acquisition Proposal and approving, endorsing or recommending such Acquisition Proposal and withdrawing its recommendation of this Agreement and the Merger to the extent (A) the Board of Directors of Company determines in good faith after consultation with its outside legal counsel (who may be Company's independent legal counsel acting with respect to this Agreement) its fiduciary obligations under applicable law require it to do so, (B) (x) at least three (3) (which Takeover Proposal was unsolicited shall include at least two (2) business days) days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such party, Company gives Parent written notice of Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such party and did (y) Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party by or on behalf of Company, and (C) contemporaneously with furnishing any such nonpublic information to such party, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not otherwise result from been previously furnished by the Company to Parent). Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.4 by any officer, director, controlled affiliate or employee of Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of Company or any of its subsidiaries shall be deemed to be a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.5.4

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall and its Subsidiaries will not, nor shall it permit any of its subsidiaries to, or will they authorize or permit any directorof their respective officers, officer directors, affiliates or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or ), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non- public information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Acquisition Proposal, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal made by Parentor (v) enter into any contract relating to any Acquisition Transaction (as defined below); provided, however, this Section 5.4(a) shall not prohibit the Company or its Board of Directors from (A) providing access to the properties, books and records of the Company and its Subsidiaries to, furnishing information regarding the Company and its Subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any person or group in response to a Superior Offer submitted by such person or group (and not withdrawn), (B) taking the actions described in Section 5.2(c) as permitted thereby, (C) recommending a Superior Offer to Company’s shareholders or (D) terminating this Agreement pursuant to Section 7.1(b) in order to immediately thereafter enter into a definitive agreement with respect to such Superior Offer, if, in the case of either (A), (B), (C) or (D), (1) neither the Company nor any representative of Company and its Subsidiaries shall have violated any of the restrictions set forth in this Section 5.4, (2) the Board of Directors of Company concludes in good faith, after consultation with its outside legal counsel, that at any time prior to obtaining the Stockholder Approval, such action is necessary in order for the Board of Directors of the Company mayto comply with its fiduciary obligations to the Company’s shareholders under applicable law, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below3) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish at least two business days prior to furnishing any such nonpublic information with respect to to, or entering into discussions or negotiations with, such person or group, the Company gives Parent written notice of the identity of such person or group and its subsidiaries of the Company’s intention to the furnish nonpublic information to, or enter into discussions or negotiations with, such person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, group and (y) participate the Company receives from such person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all written and oral information furnished to such person or group by or on behalf of the Company, and (4) contemporaneously with furnishing any such information to such person or group, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent). Nothing in discussions this Section 5.4(a) shall prevent the Company or negotiations its Board of Directors from (i) complying with Rule 14e-2 promulgated under the person making such Takeover Exchange Act with regard to an Acquisition Proposal with respect to which no violation of this Section 5.4 shall have occurred or (ii) approving the sale and its representatives) regarding such Takeover Proposal.issuance of shares of Company Common Stock in connection with a financing of the Company in an amount not exceeding or equal to 20%

No Solicitation. (a) The Except as permitted by this Section 5.03, from the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of its subsidiaries to, or authorize or permit any directorCompany Subsidiary to, officer or employee nor shall it authorize any Representatives of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiary to, directly or indirectly, (i) solicit, initiate or encourageinitiate, knowingly encourage or take any other action to knowingly facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to facilitatelead to, any a Company Takeover Proposal (as defined below) or Proposal, (ii) enter into any agreement, letter of intent, memorandum of understanding or other similar instrument with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.03) or (iii) enter into, continue continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or otherwise cooperate in any way withfor the purpose of encouraging or facilitating, any Company Takeover Proposal. The Company shall, in each case other than a shall cause the Company Subsidiaries, and shall direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted theretofore with respect to any Company Takeover Proposal made by Parent; providedand request that any such Person promptly return and/or destroy all confidential information concerning the Company and the Company’s Subsidiaries to the extent permitted pursuant to a confidentiality agreement with any such Persons. Notwithstanding anything in this Agreement to the contrary, however, that at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company and its Representatives may, in response to a bona fide written each (if any) Company Takeover Proposal made after the date hereof that does not result from a material breach of this Section 5.03, (y) contact the Person making such Company Takeover Proposal solely to clarify the terms and conditions thereof and (z) if the Company Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or faith, after consultation with independent financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or is reasonably likely be expected to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d)Company Proposal, (x1) provide access to or furnish information with respect to the Company and its subsidiaries the Company Subsidiaries to the person Person making such Company Takeover Proposal (and its representatives) Representatives pursuant to a customary confidentiality agreementan Acceptable Confidentiality Agreement; provided, provided that all the Company will prior to or concurrently with the time such information is provided on a prior or substantially concurrent basis to Parent, such Person provide Parent with all non-public information regarding the Company that has not previously been provided to Parent that is provided to any Person making such Company Takeover Proposal; and (y2) conduct, engage or participate in discussions or negotiations with the person such Person and its Representatives making such Takeover Proposal (and its representatives) regarding such Company Takeover Proposal.

No Solicitation. (a) The Company From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated, and except as otherwise provided for in this Agreement, Parent, Empagio and SMB shall not, nor and none of them shall it permit any of its subsidiaries to, or authorize or permit any directorof their respective Subsidiaries, officer directors, officers or employee employees to, and each of the Company them shall use their reasonable best efforts to cause its investment bankers, financial advisors, attorneys, accountants or other advisors, agents or representatives (collectively, "Representatives") retained by it or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiaries not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate or knowingly encourage, or take any other action knowingly to designed to, or which would reasonably be expected to, facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect toinformation, or otherwise cooperate in any way with, any Takeover Proposal. Notwithstanding the foregoing, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such the Board of Directors of Parent determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined belowafter consultation with outside counsel) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below)Proposal, and which Takeover Proposal was unsolicited not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of this Section 4.024.02(a), Parent may, if its Board of Directors determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to result in a breach of its fiduciary duties to its stockholders under applicable Law, and subject to compliance with Section 4.02(c) and (d4.02(b), (xi) furnish information with respect to the Company it and its subsidiaries Subsidiaries to the person Person making such Takeover Proposal (and its representativesRepresentatives) pursuant to a customary confidentiality agreement, agreement (which (A) need not restrict such person from making any unsolicited Takeover Proposal and (B) shall permit Parent to comply with the terms of Section 4.02(c)); provided that all such information has previously been provided to Empagio or SMB, or is provided on a to Empagio or SMB prior to or substantially concurrent basis with the time it is provided to Parentsuch Person, and (yii) participate in discussions or negotiations with the person making such Takeover Proposal (and its representativesRepresentatives) regarding such Takeover Proposal.

No Solicitation. (a) The Except as permitted by this Section 6.3, during the Pre-Closing Period, the Company shall not, nor shall it permit any of cause its subsidiaries Subsidiaries to not, shall not authorize its Representatives to, or authorize or permit any director, officer or employee of the Company or any of and shall direct its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Representatives not to, directly or indirectly, (i) solicit, initiate or encourageknowingly facilitate or encourage (including by way of furnishing non-public information) the making of an Acquisition Proposal, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue engage in or otherwise participate in any discussions (except to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.3 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or furnish to any person other Person any non-public information in connection with or for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal, (iii) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect toto an Acquisition Proposal or (iv) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or otherwise cooperate any standstill provisions of any Contract entered into in any way with, any Takeover respect of a potential Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, the Company Board may take, or omit to take, any of the actions contemplated by clause (iv) of this Section 6.3 in the event that at any time prior the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to obtaining do so would breach the Stockholder Approval, the Board of Directors fiduciary duties of the Company mayBoard under applicable Law. The Company and its directors, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below)officers and employees shall, and which Takeover the Company shall direct its other Representatives to, (A) cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal was unsolicited and did not otherwise result from (B) terminate access by any Person (other than Parent, Purchaser, the Company or any of their respective Affiliates or Representatives) to any physical or electronic data room relating to any potential Acquisition Proposal. For the avoidance of doubt, any violation of the restrictions set forth in this Section 6.3(a) by a director or officer of the Company shall be deemed to be a breach of this Section 4.02, and subject to compliance with Section 4.02(c6.3(a) and (d), (x) furnish information with respect to by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company shall From and after the date of this Agreement until the earlier of the Closing Date or termination of this Agreement pursuant to Article 8, Seller will not, nor shall it will Seller authorize or permit any of its subsidiaries toofficers, directors, affiliates or authorize or permit any director, officer or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant accountant, Seller Affiliate or other advisor or representative of the Company or any of its subsidiaries retained by it to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or hereinafter defined), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or otherwise cooperate in knowingly take any way withother action to facilitate, or that would reasonably be expected to lead to, any Takeover Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any Person with respect to any Acquisition Proposal, except to inform them as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal made by Parentwithout complying with Section 5.16(c) or (v) enter into any letter of intent or similar document or any contract agreement or commitment providing for any Acquisition Transaction; provided, however, that at any time prior to obtaining the Stockholder Approval, nothing contained in this Section 5.7 shall prohibit the Board of Directors of the Company maySeller from, in response to a bona fide written Takeover Acquisition Proposal not solicited by Seller in violation of this Section 5.7 that such the Board of Directors determines of Seller has concluded in good faith is reasonably likely to result in an Adverse Recommendation Change (after consultation with a financial advisor of nationally recognized reputation) constitutes a Superior Offer (as defined belowin Section 5.16(c)), (1) or constitutes or is reasonably likely furnishing information to lead the party making such Superior Offer, to a Superior Proposal the extent that (A) the Board of Directors of Seller concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such information Seller gives Buyer written notice of Seller’s intention to furnish information to such party and (y) Seller receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of Seller, the terms of which are at least as defined belowrestrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such information to such party, Seller furnishes such information to Buyer (to the extent such information has not been previously furnished by Seller to Buyer), and (2) engaging in negotiations with the party making such Superior Offer to the extent that (A) the Board of Directors of Seller concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, Seller gives Parent and Buyer written notice of Seller’s intention to enter into negotiations with such party and (y) Seller receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of Seller, the confidentiality terms of which Takeover Proposal was unsolicited are at least as restrictive as the terms contained in the Confidentiality Agreement. Seller will immediately cease any and did not otherwise result from all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of Seller or any investment banker, attorney, accountant, Seller Affiliate or other advisor or representative of Seller shall be deemed to be a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal5.7 by Seller.

No Solicitation. (a) The From the date hereof until the termination of this Agreement, the Company shall not, agrees that neither it nor shall it permit any of the officers or directors shall, and that it shall direct and use its subsidiaries tobest reasonable efforts to cause its officers, or authorize or permit any directordirectors, officer or employee of the Company or any of its subsidiaries or any employees, investment bankerbankers, attorneyconsultants, accountant or attorneys and other advisor or representative of the Company or any of its subsidiaries agents not to, directly or indirectly, (i) take any action to solicit, initiate initiate, encourage or encourage, facilitate the making of any Acquisition Proposal or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) inquiry with respect thereto or (ii) enter into, continue or otherwise participate engage in any discussions or negotiations regardingwith any person with respect thereto, or furnish disclose any non-public information relating to the Company or afford access to the properties, books or records of the Company to any person that has made any Acquisition Proposal; provided, that nothing contained in this Section 6.14 shall prevent the Company, after providing prior notice thereof to Buyer that it is taking such action, from furnishing non-public information with respect to, or otherwise cooperate in any way entering into discussions or negotiations with, any Takeover Proposal, person in each case other than a Takeover connection with an unsolicited bona fide Acquisition Proposal made by Parent; provided, however, received from such person that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal Proposal, so long as (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(ci) and (d), (x) furnish information with respect the Company has received prior to the Company and its subsidiaries date hereof an executed confidentiality agreement or prior to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementfurnishing non-public information to, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in entering into discussions or negotiations with, such person, the Company receives from such person an executed confidentiality agreement containing standard terms and conditions and (ii) the Company Board determines in good faith, based on such matters that it deems relevant, but in any event upon the advice of independent legal counsel, that such action is necessary for the Company Board to comply with its fiduciary duties to the person making such Takeover Proposal (and Company's shareholders under applicable law; provided, further, that nothing contained in this Agreement shall prevent the Company or its representatives) regarding such Takeover board of directors from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to an Acquisition Proposal.

No Solicitation. (a) The Company SIC and RMAG each agrees that, prior to the Effective Time, except as provided below it shall not, nor and shall it not authorize or permit any of its subsidiaries todirectors, officers, employees, agents or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries representatives to, directly or indirectly, (i) solicit, initiate initiate, facilitate or encourageencourage (including by way of furnishing or disclosing information), or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) inquiries or (ii) enter into, continue or otherwise participate in the making of any discussions or negotiations regardingproposal that constitutes, or furnish to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is may reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely be expected to lead to a Superior any Transaction Proposal (as defined below), and which Takeover or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain a Transaction Proposal was unsolicited and did not otherwise result from a breach or agree to or endorse any Transaction Proposal or authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to take any such action; provided, however, that nothing contained in this Section 4.02Agreement shall prohibit the SIC or RMAG Boards of Directors, and subject to compliance with Section 4.02(c) and (d)respectively, from, (xi) furnish furnishing information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in entering into discussions or negotiations with any person or entity that makes an unsolicited written, bona fide Transaction Proposal which the SIC or RMAG Board of Directors, as the case may be, determines in good faith that such action is necessary for the SIC or RMAG Board of Directors to comply with its fiduciary duties to shareholders under applicable law or (ii) withdrawing, modifying or changing its recommendation referred to in Section 4.3 if there exists a Transaction Proposal and the SIC or RMAG Board of Directors, as the case may be, and based upon the advise of independent legal counsel, determines in good faith that such action is necessary for the SIC or RMAG Board of Directors to comply with its fiduciary duties to shareholders under applicable law in connection with such Transaction Proposal. SIC or RMAG, as the case may be, shall immediately advise the other parties to this Agreement, orally and in writing, of any inquiries or proposals relating to an Transaction Proposal known to it, the material terms and conditions of such inquiry or proposal, and the identity of the person or entity making such Takeover inquiry or proposal. SIC or RMAG, as the case may be, shall give the other parties to this Agreement at least two (2) business days advance notice of any information to be supplied to, and at least three (3) days' advance notice of any agreement to be entered into with any person or entity making such a proposal for a Transaction Proposal with respect to SIC or RMAG. For purposes of this Agreement, "Transaction Proposal" shall mean any of the following (other than the transactions between SIC, RMAG and its representativesSUB contemplated by this Agreement) regarding involving SIC or RMAG: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of twenty percent (20%) or more of the assets of SIC or RMAG, in a single transaction or series of transactions; (iii) any offer for, or the acquisition (or right to acquire) of "beneficial ownership" by any person, "group" or entity (as such Takeover Proposalterms are defined under Section 13(d) of the Securities Exchange Act of 1934), of twenty percent (20%) or more of the outstanding shares of capital stock of SIC or RMAG or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement by SIC of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.

No Solicitation. (a) The Company shall notNo Acquired Company, nor shall it permit any of its subsidiaries totheir Representatives, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, shall directly or indirectly, (i) solicit, initiate initiate, or encourageencourage or induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Transaction or take any other action knowingly that could reasonably be expected to facilitatelead to any such inquiries or the making of any such proposal or offer, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Transaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Transaction, continue or otherwise participate (iii) engage in any discussions or negotiations regardingwith any Person with respect to any Acquisition Transaction, (iv) approve, endorse or recommend any Acquisition Transaction, (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction or (vi) enter into any letter of intent or similar document or any Contract having a primary purpose of effectuating, or furnish to any person any information with respect to, or otherwise cooperate in any way withwhich could effect, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the adoption of this Agreement by the Required Company Stockholder ApprovalVote, the Board of Directors of this Section 4.2(a) shall not prohibit the Company mayfrom furnishing nonpublic information regarding the Acquired Companies to, or entering into discussions or negotiations with, any Person in response to a bona fide written Takeover Proposal Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Acquired Companies nor any of their Representative have taken any actions inconsistent with any of the provisions set forth in this Section 4.2, (2) the board of directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such Board action is required in order for the board of Directors determines directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable Legal Requirements, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person, a reasonably detailed description of such Superior Offer and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, (4) the Company receives from such Person an executed confidentiality and standstill agreement in good faith is reasonably likely customary form, and in any event containing provisions no less favorable in the aggregate to result the Company than those contained in an Adverse Recommendation Change the Confidentiality Agreement dated April 28, 2005, between Parent and Xxxxxxxx Xxxxx on behalf of the Company (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowthe "CONFIDENTIALITY AGREEMENT"), unless a confidentiality and which Takeover Proposal was unsolicited standstill agreement on substantially the same terms and did conditions as the Confidentiality Agreement has been executed by such Person prior to the date of this Agreement, and (5) contemporaneously with furnishing any additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not otherwise result been previously Delivered by the Company to Parent) provided, that this Section 4.2(a) shall not prohibit the Company's board of directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Companies, whether or not such Representative is purporting to act on behalf of any of the Acquired Companies, shall be deemed to constitute a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 4.2 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8, the Company shall not, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer or employee Subsidiary of the Company or any Representative of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Acquired Corporations (including for purposes of this Section 4.4(a) each of the affiliate shareholders of the Company or any of its subsidiaries listed on Exhibit B-1) to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Acquisition Proposal or (v) enter into, continue into any letter of intent or similar document or any Contract contemplating or otherwise participate in any discussions or negotiations regarding, or furnish relating to any person any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the Stockholder Approvalapproval of this Agreement by the Required Company Shareholder Vote, this Section 4.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, entering into a confidentiality agreement with or entering into discussions with, any Person in response to a Superior Offer submitted by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.4 with respect to such Superior Offer, (2) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of the Company to result in an Adverse Recommendation Change comply with its fiduciary obligations to the Company's shareholders under applicable law, (as defined below3) prior to furnishing any such nonpublic information to, or constitutes entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or is reasonably likely to lead to a Superior Proposal (as defined below)enter into discussions with, such Person, and which Takeover Proposal was unsolicited the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and did disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the 35. Company, and (4) contemporaneously with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not otherwise result from been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.024.4 by the Company. In addition to the foregoing, and subject the Company shall (i) provide Parent with at least 24 hours prior notice (or such lesser prior notice as provided to compliance with Section 4.02(cthe members of the Company's Board of Directors but in no event less than eight hours) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Superior Offer and (d), ii) provide Parent with at least two (x2) furnish information business days or forty-eight (48) hours prior written notice of a meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to recommend a Superior Offer to its shareholders and together with respect to the Company and its subsidiaries to the person making such Takeover Proposal notice a copy of such Superior Offer (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (ySection 4.4(b) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalbelow).

No Solicitation. (a) The Company Each of IUB and PTC respectively agree that it shall not, nor shall it permit any of its subsidiaries it Subsidiaries to, or nor shall it authorize or permit any directorofficer, officer director or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant attorney or other advisor or representative of the Company of, it or any of its subsidiaries Subsidiary to, directly or indirectly, (i) solicit, initiate or encourage, or take encourage the submission of any other action knowingly to facilitate, any Takeover Proposal takeover proposal (as defined below) or ), (ii) enter into, continue into any agreement with respect to any takeover proposal or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposaltakeover proposal; PROVIDED, in each case other than a Takeover Proposal made by Parent; provided, howeverHOWEVER, that at any time prior to obtaining the Stockholder Approval, nothing contained in this Agreement shall prevent either IUB or PTC or the Board of Directors of the Company mayeither from (A) furnishing nonpublic information to, or entering into discussions or negotiations with, any person in response to a connection with an unsolicited bona fide written Takeover Proposal takeover proposal to IUB or PTC or their respective shareholders, if and only to the extent that the Board of Directors of IUB or PTC, as applicable, determines in good faith based on written advice of its outside legal counsel that such action is necessary for such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change comply with its fiduciary duties to shareholders under applicable law, or (as defined belowB) or constitutes or is reasonably likely to lead complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Superior Proposal (takeover proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of IUB or PTC or any of its respective Subsidiaries or any investment banker, attorney or other advisor or representative of IUB or PTC or any of their respective Subsidiaries, whether or not such person is purporting to act on behalf of IUB or any Subsidiary or PTC or any Subsidiary, as defined below)applicable, and which Takeover Proposal was unsolicited and did not otherwise result from or otherwise, shall be deemed to be a breach of this Section 4.024.2(a) by the party for whom such person is an executive officer of, or an investment banker, attorney or other advisor or representative for, such party or any Subsidiary. For purposes of this Agreement, "takeover proposal" means any proposal for a merger, consolidation or other business combination involving IUB or PTC or any Subsidiary of either or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of any class of voting securities of IUB or PTC or any Subsidiary of either, or assets representing a substantial portion of the assets of IUB and subject its Subsidiaries, taken as a whole, or PTC and its Subsidiaries, taken as a whole, other than the Merger contemplated by this Agreement. Each of IUB and PTC shall immediately cease and cause to compliance be terminated any existing activities, discussions or negotiations by it or any of its officers, investment bankers, attorneys or other advisors or representatives with Section 4.02(c) and (d), (x) furnish information any parties conducted heretofore with respect to any of the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.foregoing. 20

No Solicitation. (a) The From the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, the Company shall not, nor directly or indirectly through any of its Subsidiaries or affiliates or any of its or their respective Representatives, and shall it not permit any of its subsidiaries to, Subsidiaries or authorize or permit any director, officer or employee of the Company affiliates or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries their respective Representatives to, directly (1) initiate, solicit or indirectly, (i) solicit, initiate knowingly facilitate or encourage, or take any other action knowingly to facilitate, any Takeover encourage an Acquisition Proposal (as defined below) or (ii2) enter into, continue or otherwise participate engage with any third party in any discussions or negotiations regardingconcerning, or furnish any confidential information to any person third party in connection with, an Acquisition Proposal, or any inquiry or proposal that would constitute an Acquisition Proposal if it were a bona fide written proposal or offer (except to notify such third party of the existence of the provisions of this Section 6.08), provided, however, for purposes of this Section 6.08 the term “affiliate” shall not include any Person that becomes an affiliate of the Company after the date of this Agreement without any action on the part of the Company. Notwithstanding anything to the contrary in the previous sentence, prior to the Acceptance Date, the Company may furnish information with respect to, or otherwise cooperate in any way enter into discussions or negotiations with, any Takeover Person that has made an Acquisition Proposal if, and only to the extent that: (A) the receipt of such Acquisition Proposal did not result from a breach of (1) clause (1) of the first sentence of this Section 6.08(a) or (2) any other provision of this Section 6.08 in any material respect; (B) such Acquisition Proposal constitutes a Superior Proposal or the Company Board, after consulting with the Company’s outside legal and financial advisors, determines in good faith that (1) such Acquisition Proposal, after furnishing such information and entering into such discussions or negotiations, could reasonably be expected to result in each case other a Superior Proposal and (2) the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s shareholders under applicable Law; and (C) prior to furnishing such information, the Company receives from such Person an executed confidentiality agreement on customary terms that are no less favorable to the Company than a Takeover Proposal made by Parentthe terms of the Confidentiality Agreement; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, after making the determination described in response clause (B) above, enter into discussions or negotiations solely with respect to a bona fide written Takeover Proposal that entering into such Board of Directors determines confidentiality agreement and will not be deemed to be in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to 6.08 as a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalresult thereof.

No Solicitation. During the period (the “No-Solicitation Period”) commencing as of the date of this Agreement and ending on the earlier to occur of (a) The Company the termination of this Agreement and (b) the Closing, Conexant shall not, nor not and shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries cause Newport Fab LLC and Conexant’s and Newport Fab LLC’s respective Representatives not to, directly or indirectly, (i) enter into, solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingwith, or furnish encourage or respond to any person inquiries or proposals by, or participate in any negotiations with, or provide any information with respect to, or otherwise cooperate in any other way with, any Takeover ProposalPerson, in each case other than a Takeover Proposal made by Parent; providedCarlyle and its Representatives, concerning any sale, lease, or license of all or any substantial portion of the Wafer Fabrication Operations or the Contributed Assets, or (ii) provide any nonpublic information regarding the Contributed Assets or the Wafer Fabrication Operations to any Person in response to any proposal described in clause (i) above, provided however, that at Conexant shall not be prohibited from providing nonpublic information regarding the Contributed Assets or the Wafer Fabrication Operations to any time prior to obtaining Person who is considering the Stockholder Approval, the Board acquisition of Directors all or substantially all of the Company may, in response to a bona fide written Takeover Proposal that such Board assets of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) Conexant or constitutes the acquisition of beneficial ownership of 50% or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach more of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementcapital stock of Conexant, provided that such third party enters into a non-disclosure agreement with Conexant which provides that the Company is a third party beneficiary of those provisions contained in such non-disclosure agreement that relate to the non-disclosure of nonpublic information related to the Wafer Fabrication Operations or the Contributed Assets. Conexant shall promptly notify Carlyle of the material terms of any inquiry, proposal, or offer received by the Conexant Group Companies during the No-Solicitation Period from any Person (other than the Company or Carlyle) solely related to the acquisition, lease, license or transfer of all or a material portion of the Contributed Assets or the Wafer Fabrication Operations including, without limitation, the identity of the prospective purchaser or soliciting party, except to the extent that any such information is provided on a prior notification would violate any existing agreement of Conexant. Notwithstanding the foregoing, Conexant shall have no obligation to disclose to any Person the existence of any inquiry, proposal or offer received by Conexant relating to the acquisition of all or substantially concurrent basis to Parent, and (y) participate in discussions all of the assets of Conexant or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalacquisition of beneficial ownership of 50% or more of the capital stock of Conexant.

No Solicitation. (a) The Neither Brainworks, the Company nor the LLC shall notdirectly or indirectly, nor and shall it permit any of its subsidiaries to, or not authorize or permit any director, officer of the other Brainworks Corporations (in the case of Brainworks) or employee the AAHoldings Entities (in the case of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of and the Company or any of its subsidiaries LLC) to, directly or indirectly, (i) directly or indirectly solicit, initiate or initiate, encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any other action knowingly that could reasonably be expected to facilitatelead to an Acquisition Proposal, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC) to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, continue or otherwise participate (iii) engage in any discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal, (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise cooperate in relating to any way with, any Takeover Proposal, in each case Acquisition Transaction (other than a Takeover Proposal made the transactions contemplated by Parentthis Agreement); provided, however, that at this Section 4.4(a) shall not prohibit Brainworks from furnishing nonpublic information regarding the Brainworks Corporations to, or entering into discussions with, any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, Person in response to a bona fide written Takeover Superior Proposal that is submitted to Brainworks by such Board Person (and not withdrawn) if (1) neither Brainworks nor any Representative of Directors determines any of the Brainworks Corporations shall have violated any of the restrictions set forth in this Section 4.4, (2) the board of directors of Brainworks concludes in good faith faith, after having taken into account the written advice of its outside legal counsel, that such action is reasonably likely required in order for the board of directors of Brainworks to result comply with its fiduciary obligations to Brainworks' stockholders under applicable law, (3) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Brainworks gives the LLC written notice of the identity of such Person and of Brainworks' intention to furnish nonpublic information to, or enter into discussions with, such Person, and Brainworks receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Brainworks and containing "standstill" provisions no less favorable to Brainworks than the "standstill" provisions contained that certain letter agreement dated July 2, 2002, between the LLC and Brainworks, and (4) at least two business days prior to furnishing any such nonpublic information to such Person, Brainworks furnishes such nonpublic information to the LLC (to the extent such nonpublic information has not been previously furnished by Brainworks to the LLC). Without limiting the generality of the foregoing, Brainworks, the LLC and the Company each acknowledge and agree that any violation of or the taking of any action inconsistent with any of the restrictions set forth in an Adverse Recommendation Change the preceding sentence by any Representative of any of the Brainworks Corporations (as defined belowin the case of Brainworks) or constitutes or is reasonably likely to lead to a Superior Proposal the AAHoldings Entities (as defined belowin the case of the Company and the LLC), and which Takeover Proposal was unsolicited and did whether or not otherwise result from such Representative is purporting to act on behalf of any of such Entities, shall be deemed to constitute a breach of this Section 4.024.4 by Brainworks, and subject to compliance with Section 4.02(c) and (d)the Company, (x) furnish information with respect to or the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreementLLC, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalas applicable.

No Solicitation. (a) The Neither the Company shall not, nor shall it permit any of the other Acquired Corporations nor any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, their respective Representatives shall directly or indirectly, (i) solicit, initiate initiate, or encourageknowingly encourage or induce the making, submission or announcement of any inquiries or the making of any proposal or offer related to an Acquisition Transaction or take any other action knowingly that could reasonably be expected to facilitatelead to any such inquiries or the making of any such proposal or offer, any Takeover Proposal (as defined below) or (ii) enter intofurnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Transaction or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Transaction, continue or otherwise participate (iii) engage in any discussions or negotiations regardingwith any Person with respect to any Acquisition Transaction, (iv) approve, endorse or recommend any Acquisition Transaction, (v) make or authorize any statement, recommendation or solicitation in support of any possible Acquisition Transaction, or furnish to (vi) enter into any person letter of intent or similar document or any information with respect toContract having a primary purpose of effectuating, or otherwise cooperate in any way withwhich would effect, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time prior to obtaining the adoption of this Agreement by the Required Company Stockholder ApprovalVote, the Board of Directors of this Section 4.2(a) shall not prohibit the Company mayfrom furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, or negotiations with, any Person in response to a bona fide written Takeover Proposal Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Acquired Corporations nor any of their Representatives have taken any actions inconsistent with any of the provisions set forth in this Section 4.2, (2) the board of directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such Board action is required in order for the board of Directors determines directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements, (3) at least 48 hours prior to furnishing any such nonpublic information to, or entering into discussions with or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person, a reasonably detailed description of such Superior Offer and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, or negotiations with such Person, (4) the Company receives from such Person an executed confidentiality agreement containing confidentiality provisions no less favorable in good faith is reasonably likely the aggregate to result the Company than those contained in an Adverse Recommendation Change the Mutual Nondisclosure Agreement dated August 6, 2003 between Parent and the Company (as defined belowthe “Nondisclosure Agreement”) (provided that such confidentiality agreement will not prevent the Company from disclosing the terms of the Superior Offer to Parent and its Representatives or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowfrom otherwise complying with this Section 4.2(a)), and which Takeover Proposal was unsolicited (5) contemporaneously with furnishing any additional nonpublic information to such Person, the Company furnishes such additional nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) provided, that this Section 4.2(a) shall not prohibit the Company from (i) taking and did disclosing to its stockholders a position contemplated by Rule 14d-9 or 14e-2 promulgated under the Exchange Act or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the Company board of directors, after receipt of advice from outside counsel, failure so to disclose would violate its fiduciary duties to the Company’s stockholders under applicable Legal Requirements; it being expressly understood that nothing in this sentence shall be construed to limit or expand Parent’s rights and the Company’s obligations under each of Section 5.2 and Section 8.1(e). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not otherwise result from such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish information with respect to 4.2 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalCompany.

No Solicitation. (a) The Company and each of its Subsidiaries and affiliates shall not, nor shall it permit directly or indirectly, through any of its subsidiaries toofficer, or authorize or permit any director, officer employee, representative or employee agent of the Company or any of its subsidiaries or any investment bankerSubsidiaries (and it shall use reasonable efforts to cause such officers, attorneydirectors, accountant or other advisor or representative of the Company or any of its subsidiaries employees, representatives and agents not to, directly or indirectly), (i) solicit, initiate initiate, resume, facilitate or encourageencourage any inquiries or proposals that constitute, or take any other action knowingly could reasonably be expected to facilitatelead to, any Takeover an Acquisition Proposal (as defined below) or (ii) enter into, continue engage in negotiations or otherwise participate in any discussions or negotiations regardingconcerning, or furnish provide any non-public information to any person any information with respect or entity relating to, or otherwise cooperate in any way with, any Takeover Acquisition Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that if, at any time prior to obtaining the Stockholder Approvaldate of the Company Stockholders Meeting (such meeting used as defined herein, and such period, the “Applicable Period”), the Board of Directors of the Company determines in good faith, following the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the Company’s stockholders under applicable law, the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined belowin Section 6.2(b), ) which was not solicited by it and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.026.2(a), and subject to providing prior written notice of its decision to take such action to Parent (a “Section 6.2 Notice”) and compliance with Section 4.02(c) and (d6.2(c), (x) furnish information with respect to the Company and its subsidiaries Subsidiaries to the any person making such Takeover a Superior Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior agreement containing terms no less favorable to the Company (including with respect to standstill or substantially concurrent basis to Parent, other provisions) than the Confidentiality Agreement and permitting the disclosure contemplated by this Section 6.2 and (y) participate in discussions or negotiations with regarding such Superior Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the person making such Takeover Proposal (net revenues, net income or the assets of the Company and its representatives) regarding such Takeover ProposalSubsidiaries, taken as a whole, or 25% or more of any class of equity securities of the Company or any of its Subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of equity securities of the Company or any of its Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement.

No Solicitation. (a) The From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall will not, nor shall will it authorize or permit any of its subsidiaries toofficers, directors, affiliates or authorize or permit any director, officer or employee of the Company or any of its subsidiaries employees or any investment banker, attorney, accountant attorney or other advisor or representative of the Company or retained by any of its subsidiaries them to, directly or indirectly, indirectly (i) solicit, initiate initiate, encourage or encourageinduce the making, submission or take announcement of any other action knowingly to facilitate, any Takeover Company Acquisition Proposal (as defined below) or ), (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or otherwise cooperate in take any way withother action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Takeover Company Acquisition Proposal, (iii) engage in each case other than a Takeover discussions with any person with respect to any Company Acquisition Proposal, except as to the existence of these provisions, (iv) subject to Section 5.2(c), approve, endorse or recommend any Company Acquisition Proposal made by Parentor (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Company Acquisition Transaction (as defined below); provided, however, that at until the date on which this Agreement is approved by the required vote of the Company shareholders, this Section 5.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its subsidiaries to, entering into a confidentiality agreement with or entering into discussions with, any time prior person or group in response to obtaining a Company Superior Offer submitted by such person or group (and not withdrawn) if (1) neither the Stockholder ApprovalCompany nor any representative of the Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 5.4(a), (2) the Board of Directors of the Company mayconcludes in good faith, in response to a bona fide written Takeover Proposal after consultation with its outside legal counsel, that such action is required in order for the Board of Directors determines in good faith is reasonably likely of the Company to result in comply with its fiduciary obligations to the Company's shareholders under applicable law, (3) (x) at least forty-eight (48) hours prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such person or group, the Company gives Parent written notice of the identity of such person or group and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such person or group and (y) the Company receives from such person or group an Adverse Recommendation Change (as defined below) executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such person or constitutes group by or is reasonably likely on behalf of the Company and containing terms no less favorable to lead to a Superior Proposal (as defined below)the disclosing party than the terms of the Confidentiality Agreement, and which Takeover Proposal was unsolicited (4) contemporaneously with furnishing any such nonpublic information to such person or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). The Company will immediately cease any and did not otherwise result from all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer or director of the Company or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 4.025.4(a) by the Company. In addition to the foregoing, and subject the Company shall (i) provide Parent with at least twenty-four (24) hours prior notice (or such lesser prior notice as provided to compliance with Section 4.02(cthe members of the Company's Board of Directors but in no event less than eight hours) of any meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to consider a Company Superior Offer and (d), ii) provide Parent with at least forty-eight (x48) furnish information hours prior written notice of a meeting of the Company's Board of Directors at which the Company's Board of Directors is reasonably expected to recommend a Company Superior Offer to its shareholders and together with respect such notice a copy of the definitive documentation relating to the such Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover ProposalSuperior Offer.

No Solicitation. (a) The Company Except as expressly permitted by this Section 5.3, the Company, on the one hand, and Parent, on the other hand, shall, and each shall notcause its Subsidiaries and their respective directors, nor shall it permit any of its subsidiaries officers and employees to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives and Affiliates to, (i) immediately cease any solicitation, knowing encouragement, discussions or authorize negotiations with any Person that may be ongoing with respect to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or permit otherwise request, any directorPerson that has executed a confidentiality or non-disclosure agreement within the twelve (12)-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such confidential information or documents previously furnished in connection therewith or material incorporating any such information in the possession of such Person or its Representatives (and to confirm in writing the return or destruction of all such information) and (ii) from and after the date of this Agreement until the Effective Time or, officer or employee of if earlier, the Company or any of its subsidiaries or any investment bankerTermination Date, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries tonot, directly or indirectly, (iA) solicit, initiate or encourageknowingly facilitate or knowingly encourage any inquiries regarding, or take the making of any other action knowingly proposal or offer that constitutes, or would reasonably be expected to facilitatelead to, any a Takeover Proposal Proposal, (as defined belowB) or (ii) enter intoengage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any person other Person any non-public information in connection with respect toor for the purpose of encouraging or facilitating, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parent; provided, however, that at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring Person to this Section 5.3(a) or (y) upon receipt of a bona fide fide, unsolicited written Takeover Proposal from any Person that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d5.3(a), (x) furnish information solely to the extent necessary to ascertain facts or clarify terms with respect to a Takeover Proposal for the Company and its subsidiaries Board of Directors or the Parent Board of Directors, as applicable, to be able to have sufficient information to make the person making such Takeover Proposal determination described in Section 5.3(b)) or (and its representativesC) pursuant approve, recommend or enter into, or propose to a customary confidentiality approve, recommend or enter into, any letter of intent or similar document, agreement, provided that all such information is provided on commitment or agreement in principle providing for a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal.

No Solicitation. (a) The Company shall notand shall cause the Acquired Companies and its and their respective Representatives to immediately cease any and all existing discussions, nor shall it permit any of its subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action knowingly to facilitate, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions communications or negotiations regardingwith any Persons (other than Parent, or furnish to any person any information Merger Sub and their Representatives) conducted heretofore with respect to, or otherwise cooperate any that would reasonably be expected to lead to, an Acquisition Proposal. The Company shall promptly (but in no event later than two (2) Business Days after the date of this Agreement) revoke, terminate or withdraw access of any way with, any Takeover Proposal, in each case Person (other than a Takeover Proposal made by Parent; provided, however, that at Merger Sub and their Representatives) to any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may, in response to a bona fide written Takeover Proposal that such Board of Directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change data room (as defined belowvirtual or actual) or constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (d), (x) furnish containing any non-public information with respect to the Company or the Acquired Companies in connection with an Acquisition Proposal. The Company shall immediately demand that each Person which has heretofore executed a confidentiality agreement with it or any of its affiliates or any Acquired Company or any of their respective affiliates or Representatives pursuant to which the Company provided confidential information regarding the Acquired Companies after August 31, 2014 in connection with such Person’s consideration of a possible Acquisition Proposal to immediately return or destroy (and its subsidiaries have such destruction certified in writing by such Person to the person making Company hereunder) all confidential information heretofore furnished by or on behalf of any Acquired Company or any of their respective affiliates or Representatives to such Takeover Proposal (and its representatives) pursuant to Person or any of such Person’s affiliates or Subsidiaries or any of such Person’s or such Person’s affiliates’ or Subsidiaries’ Representatives in connection with such Person’s consideration of a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover possible Acquisition Proposal.

No Solicitation. (a) The Company shall not, nor shall it permit any of its subsidiaries Subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries Subsidiaries (collectively, the “Representatives”) to, directly or indirectly, (i) solicit, solicit or initiate or encourage, or take any other action knowingly to facilitatefacilitate or encourage, any Takeover Proposal (as defined below) or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or otherwise cooperate in any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by Parentexcept to notify such Person of the existence of this provision; provided, however, that that, at any time prior to obtaining the Stockholder Company Shareholder Approval, the Board of Directors of the Company may, in response to a bona fide unsolicited, written Takeover Proposal made after the date of this Agreement that such the Board of Directors of the Company determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or after consultation with its outside legal counsel and financial advisor constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and that did not otherwise result from a breach of this Section 4.024.2, provided the Board of Directors of the Company shall have determined in good faith after consultation with its outside legal counsel that the failure to take such action would be reasonably likely to be inconsistent with fulfilling its fiduciary duties under applicable law, and subject to compliance with Section 4.02(cSections 4.2(c) and (d), and after providing Parent advance notice of the intention to take such actions (xA) furnish information with respect to the Company and its subsidiaries Subsidiaries to the person making such Takeover Proposal Person (and its representatives) making such Takeover Proposal pursuant to a customary confidentiality agreementagreement no less restrictive on such Person than the confidentiality agreement in effect between the Company and Parent (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information not previously provided to Parent is provided on a prior or substantially concurrent basis to Parent, except to the extent such information would be reasonably likely to result in competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated or such disclosure is prohibited by applicable Governmental Entities or pursuant to applicable laws, in each case relating to the exchange of information (“Prohibited Information”), and so long as no information is provided to the Person making such Takeover Proposal that would constitute Prohibited Information with respect to such Person, and (yB) participate in discussions or negotiations with the person making such Takeover Proposal Person (and its representatives) making such Takeover Proposal regarding such Takeover Proposal.. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative or Affiliate of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 4.2(a) by the Company. As of the date hereof, the Company has, and has caused each of its Subsidiaries and each of the Representatives to have terminated all discussions or negotiations with all third parties regarding any Takeover Proposal and requested the

No Solicitation. (a) The Company shall notnot directly or indirectly do, nor and shall it permit ensure that no Representative of any of its subsidiaries tothe Acquired Corporations directly or indirectly does, or authorize or permit any director, officer or employee of the Company or any of its subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, following: (i) solicit, initiate or initiate, knowingly encourage, induce or take knowingly facilitate the making, submission or announcement of any other action knowingly to facilitate, any Takeover Acquisition Proposal (as defined below) or Acquisition Inquiry; (ii) enter into, continue furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or otherwise participate in any response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any information with respect to, Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise cooperate in relating to any way with, any Takeover Proposal, in each case other than a Takeover Proposal made by ParentAcquisition Transaction; provided, however, that at any time that, notwithstanding anything contained in this Section 4.3(a), prior to obtaining the adoption and approval of this Agreement by the Required Stockholder ApprovalVote, the Board of Directors of the Company may, (A) in response to a bona fide written Takeover an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Board Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of Directors each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Proposal Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as defined below)favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and which Takeover Proposal was unsolicited and did agrees that, in the event any Representative of any of the Acquired Corporations (whether or not otherwise result from such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.024.3 by the Company, and subject the taking of such action by such Representative shall be deemed to compliance with constitute a breach of this Section 4.02(c) and (d), (x) furnish information with respect to 4.3 by the Company and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposalfor purposes of this Agreement.