Common use of Acquisition Proposals Clause in Contracts

Acquisition Proposals. Neither the Company nor any of its subsidiaries shall, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The

Acquisition Proposals. Neither (a) Except as provided in this Section 6.2(a) and in Section 6.2(d), the Company nor any of its subsidiaries shallshall not (and shall cause the Company Subsidiaries to not), and shall take such reasonable actions to cause (and shall cause the Company Subsidiaries to take such reasonable actions to cause) each Company Entity’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents, and other representatives (collectively, the “Representatives”) not to, (i) directly or indirectly, through any officer, director, agent or otherwiseindirectly initiate, solicit, initiate knowingly encourage, or encourage the making facilitate (including by way of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactionsfurnishing non-public information) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information inquiries with respect to, or otherwise cooperate in the making or submission of, any way withproposal that constitutes, or assist would reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions or negotiations with, furnish any non-public information or data relating to any Company Entity or any Company Asset to, or provide access to the properties, books or records of any Company Entity to, any Person that has made an Acquisition Proposal or in contemplation of an Acquisition Proposal. Notwithstanding the immediately foregoing sentence, at any time prior to obtaining the Company Required Vote, the Company and the Company’s Board are permitted to take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party who delivers if (w) the Company has received a written Acquisition Proposal which was from such third party (and such Acquisition Proposal did not solicited or encouraged after the date result from a breach of this Agreement Section 6.2(a), whether by any Company Entity or any Representative (as if all Company Entities and Representatives were bound by this Section 6.2(a))), (x) the Company gives the Parent the notice required by Section 6.2(e), (y) after receiving the advice of its financial advisors, the Company’s Board reasonably determines in good faith by that such proposal constitutes, or is reasonably likely to lead to, a majority vote Superior Proposal, and (iz) the Company’s Board determines in good faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take participate in such action negotiations or discussions or to furnish such information or data to such third party is reasonably determined likely to constitute a breach of be inconsistent with the Company Board’s fiduciary duties of the Board under applicable Law, ; except that (ii1) after consultation the Company shall not deliver any non-public information to such third party without first entering into a confidentiality agreement with and receipt of advice from a recognized investment banking firm, that such proposal is more third party on terms no less favorable to the Company's shareholders from a financial point of view Company than those contained in the Transactions Confidentiality Agreement (including any adjustment such confidentiality agreement with such third party, an “Acceptable Confidentiality Agreement”) and (2) subject to applicable Law, the Company shall make available to the terms Parent any non-public information concerning any Company Entity that is made available to any other Person or group in connection with any actual or potential Acquisition Proposal that was not previously made available to the Parent, contemporaneously with the delivery of such information to (or as promptly as practicable after such information is delivered to) such Person. Nothing contained in this Section 6.2 will prohibit the Company or the Company’s Board from taking and conditions proposed by Purchaser in response disclosing to such Acquisition Proposal), (iii) that sufficient commitments have been obtained the Company’s stockholders a position with respect to such an Acquisition Proposal that the Board reasonably expects a transaction pursuant to Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law, including the Company Board’s fiduciary duties; except that compliance with such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is rules will not subject permit the Company to any regulatory approvals or make an Adverse Recommendation Change other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thethan in accordance with Section 6.2(d).

Acquisition Proposals. Neither (a) Subject to the other provisions of this Section 6.5, during the Interim Period, the Company nor any agrees that it shall not, and shall cause each of the other Company Entities not to, and shall not authorize and shall use its subsidiaries shallreasonable best efforts to cause its and their Representatives not to, directly or indirectlyindirectly through another Person, through any officer, director, agent or otherwise, (i) solicit, initiate initiate, knowingly encourage or encourage the making of knowingly facilitate any proposal inquiry, discussion, offer or offer from any Person relating to any acquisition request that constitutes, or purchase of all or (other than in the ordinary course of business and not that is reasonably likely to interfere with the consummation of the Transactions) any portion of the assets oflead to, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", (ii) or participate engage in any discussions or negotiations regarding, or furnish to any other Person Third Party any non-public information in connection with respect to, or otherwise cooperate any Third Party in furtherance of any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect approve or recommend, or propose publicly to such approve or recommend, an Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and Proposal, (iv) that such approve, adopt, declare advisable or recommend, or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than a Qualifying Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to an Acquisition Proposal is not subject (an “Alternative Acquisition Agreement”), (v) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Recommendation, (vi) fail to include the Company Recommendation in the Proxy Statement or any regulatory approvals Schedule 14D-9, as applicable or other legal(vii) resolve, financial agree to or other restrictions that could reasonably be expected propose to prevent consummation. Thedo any of the foregoing (any act described in clauses (iii), (iv), (v) and (vi) above, an “Adverse Recommendation Change”).

Acquisition Proposals. Neither the The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and its and its Subsidiaries’ officers, directly or indirectlydirectors, through any officeragents, directoradvisors and affiliates not to, agent or otherwise, solicit, initiate solicit or encourage the making of any proposal inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information proposals with respect to, or otherwise cooperate engage in any way withnegotiations concerning, or assist provide any confidential non-public information to, or participate in, facilitate or encourage, have any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written person relating to, any Acquisition Proposal; provided that, in the event the Company receives an unsolicited bona fide Acquisition Proposal which was not solicited and the Company Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal, the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or encouraged after cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Company Board concludes in good faith (and based on the advice of counsel) that failure to take such actions would result in a violation of its fiduciary duties under applicable law; provided that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (without regard to any modification thereof pursuant hereto or lapse of time). The Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with any persons other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. The Company will within one business day advise Parent following receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach any Acquisition Proposal and the substance thereof (including the identity of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects and will keep Parent apprised of any related developments on a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thecurrent basis.

Acquisition Proposals. Neither the (a) The Company agrees that neither it nor any of its subsidiaries Subsidiaries nor any of their respective officers and directors shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries’ respective Representatives not to, directly or indirectly, through any officer, director, agent or otherwise, : (i) solicit, initiate initiate, seek or knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal or offer from Company Acquisition Proposal, (ii) furnish any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, nonpublic information regarding the Company or any of its subsidiaries Subsidiaries to any person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any recapitalizationdiscussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, business combination(iv) approve, consolidationendorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, mergeragreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(h)); provided, liquidationhowever, dissolution that this Section 5.3 shall not prohibit (A) the Company, or similar transaction with the Board of Directors of the Company, directly or indirectly through any affiliate, director, officer, employee or Representative, prior to the receipt of the Company Shareholder Approval, from furnishing nonpublic information regarding the Company or any of its subsidiaries Subsidiaries to, or entering into or participating in discussions or negotiations with, any other transaction person in response to (x) an unsolicited, written Company Acquisition Proposal that the consummation Board of which would Directors of the Company concludes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes or could reasonably be expected lead to impede, interfere with, prevent a Company Superior Offer or materially delay (y) an unsolicited inquiry relating to a Company Acquisition Proposal by a person that the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser Board of Directors of the Transactions Company determines is credible and reasonably capable of making a Company Superior Offer (an “Inquiry”), if (1) such Company Acquisition Proposal or Inquiry did not result from a breach of this Section 5.3(a) (other than any communication such breach that is unintentional and immaterial in effect), (2) the Company gives to Parent the notice required by Section 5.3(b) and (3) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal or Inquiry only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided, that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered promptly to Parent (to the foregoing being an "extent such information has not been previously furnished or made available by the Company to Parent) or (B) the Company from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that compliance with such rules shall not in any way limit or modify the Company may furnish information effect that any action taken pursuant to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, such rules has under any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date other provision of this Agreement if and in no event shall the Company or the Company’s Board reasonably determines in good faith by of Directors or a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, committee thereof take any action that failing to take such action is reasonably determined to would constitute a breach Company Change of the fiduciary duties Recommendation in respect of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Company Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thethan in compliance with Section 5.3(c).

Acquisition Proposals. Neither (a) From and after the date of this Agreement, the Company nor shall, and shall cause the Company Subsidiaries to, and it shall use its reasonable best efforts to cause any of its subsidiaries shalland their officers, directly directors, employees, financial advisors, attorneys, accountants, representatives and agents (collectively, “Company Representatives”) to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and promptly request that all confidential information furnished by or indirectlyon behalf of the Company with respect thereto be returned to the Company or destroyed. From and after the date of this Agreement until the termination hereof and except as permitted by the following provisions, through any officerthe Company shall not, director, agent or otherwise, and it shall use its reasonable best efforts to cause the Company Subsidiaries and the Company Representatives not to (i) solicit, initiate initiate, knowingly encourage or encourage knowingly facilitate the making of an Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 6.02(a)) or (iii) other than informing Persons of the existence of the provisions contained in this Section 6.02, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information with respect to the Company or any Company Subsidiary or furnish any Person with access to the properties of the Company or any Company Subsidiary in connection with any inquiries or the making of any proposal that constitutes, or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not is reasonably likely to interfere with lead to, any Acquisition Proposal; provided, however, that, at any time prior to obtaining the consummation Required Company Vote, in response to an unsolicited Acquisition Proposal that the Board of Directors of the Transactions) any portion Company determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized standing (including Wachovia Capital Markets, LLC), constitutes or is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was made after the assets of, or any equity interest indate hereof and did not result from a breach of this Section 6.02, the Company or any of its subsidiaries or any recapitalizationmay, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication i) furnish information with respect to the foregoing being an "Company and Company Subsidiaries to the Person making such Acquisition Proposal"Proposal (and its representatives) or participate in any negotiations regarding, or furnish pursuant to any other a customary confidentiality agreement not less restrictive of such Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of than the foregoingConfidentiality Agreement; provided, however, that the Company may furnish all such information to (subjecthas previously been, or is, in each casesubstance, provided to receipt by the Company of a confidentiality agreement on terms substantially similar Parent contemporaneously as it is provided to the agreement referred to in Section 4.02(b))such Person, and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation participate in discussions or negotiations with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to Person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to and its officers, directors, employees, financial advisors, attorneys, accountants, representatives and agents regarding such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither the (a) The Company nor and its officers, directors, employees, representatives and agents shall immediately cease any of its subsidiaries shall, directly existing discussions or indirectly, through negotiations with any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating parties conducted heretofore with respect to any acquisition Acquisition Proposal (as defined in Section 6.2(b) hereof). The Company and its Subsidiaries will not, and will use their best efforts to cause their respective officers, directors, employees and investment bankers, attorneys, accountants or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, agents retained by the Company or any of its subsidiaries Subsidiaries not to, (i) initiate or solicit, directly or indirectly, any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information inquiries with respect to, or otherwise cooperate the making of, any Acquisition Proposal, or (ii) except as permitted below, engage in any way negotiations or discussions with, or assist furnish any information or participate indata to any Third Party (as defined in Section 8.3(b) hereof) relating to an Acquisition Proposal (other than the transactions contemplated hereby and by the Ancillary Agreements). Notwithstanding anything to the contrary contained in this Section 6.2, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b))to, and negotiate or otherwise engage participate in discussions or negotiations (including, as a part thereof, making any counter- proposal) with, any party who delivers a Third Party which submits an unsolicited written Acquisition Proposal which was not solicited or encouraged after to the date of this Agreement Company if the Company's Board reasonably determines in good faith of Directors by a majority vote (i) after consultation determines in its good faith judgment, based as to legal matters upon the written opinion of legal counsel, that the failure to furnish such information or participate in such discussions or negotiations would likely constitute a breach of the Board's fiduciary duties under applicable Law; provided, that nothing herein shall prevent the Board from taking, and disclosing to the Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with and receipt regard to any tender offer; provided further, that the Board shall not recommend that the shareholders of advice from the Company tender their Shares in connection with any such tender offer unless the Board by a majority vote determines in its outside good faith judgment, based as to legal matters on the written opinion of legal counsel, that failing to take such action is reasonably determined to would likely constitute a breach of the Board's fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firmduty; provided further, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including Company shall not enter into any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained agreement with respect to such any Acquisition Proposal that except concurrently with or after the Board reasonably expects termination of this Agreement (except with respect to confidentiality and standstill agreements to the extent expressly provided below). The Company shall promptly provide Parent with a transaction pursuant to such copy of any written Acquisition Proposal could be consummated received and (iv) that such a written statement with respect to any non-written Acquisition Proposal is not subject received, which statement shall include the identity of the parties making the Acquisition Proposal and the terms thereof. The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal with a Third Party. In no event shall the Company provide non-public information regarding the Retained Business to any regulatory approvals or other legal, financial or other restrictions that could Third Party making an Acquisition Proposal unless such party enters into a confidentiality agreement containing provisions designed to reasonably be expected to prevent consummation. Theprotect the confidentiality of such 18

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof, the Company nor shall not and 9shall cause the subsidiaries not to, and shall use its best efforts to cause the officers, directors, employees and other agents and advisors (including, without limitation, any investment bank, attorney or accountant retained by the Company) of the Company and its subsidiaries shallnot to, directly or indirectly, through (i) take any officer, director, agent or otherwise, action to solicit, initiate or knowingly encourage the making of or otherwise knowingly facilitate any proposal Acquisition Proposal or offer any inquiries, proposals or offers from any Person (other than Parent or Merger Sub) relating to any acquisition Acquisition Proposal, (ii) grant any waiver or purchase release under any standstill or similar agreement with respect to any class of all or (other than in the ordinary course equity securities of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any subsidiary or (iii) furnish any information to or participate in any discussions or negotiations with any Person that has made or, to the knowledge of its subsidiaries or any recapitalizationthe Company, business combination, consolidation, merger, liquidation, dissolution or similar transaction with intends to make an Acquisition Proposal except to the Company or any of its subsidiaries or any other transaction extent the consummation of which would or foregoing could not reasonably be expected to impedebe relevant to an Acquisition Proposal; PROVIDED, interfere withHOWEVER, prevent or materially delay that nothing contained in this Section 5.3(a) shall prohibit the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions Board from taking any action described in clause (any communication iii) above with respect to the foregoing being any Person that has made an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to unsolicited (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar as such term relates to the agreement referred to in Section 4.02(b)), period from and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date hereof) bona fide written Superior Proposal if, and only to the extent that, (A) the acceptance for payment of this Agreement if any Shares pursuant to the Board reasonably Offer shall not have occurred, (B) the Board, after consultation with outside legal counsel, determines in good faith that such action would, in the absence of the foregoing proscriptions, be required by a majority vote its fiduciary duties under the DGCL or its duties or obligations under other applicable law, and (iC) prior to taking such action, the Company receives from such Person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after consultation with and receipt of advice from its outside legal counsel, that failing determining to take such any action is reasonably determined to constitute a breach described in clause (iii) of the fiduciary duties preceding sentence, the Company shall notify Parent of any such Superior Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Board under applicable LawPerson making it), (ii) after consultation with and receipt shall thereafter inform Parent on a prompt basis of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment material changes to the terms and conditions proposed by Purchaser in response of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such Acquisition Proposal)third party. The Company shall, (iii) and shall cause its subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its subsidiaries to, immediately cease and cause to be terminated all discussions and negotiations, if any, that sufficient commitments have been obtained taken place prior to the date hereof with any parties with respect to such any Acquisition Proposal that Proposal. Nothing contained in this Agreement shall prevent the Board reasonably expects of Directors of the Company from complying with Rules 14d-9 or 14e-2 under the Exchange Act with respect to any Acquisition Proposal, including taking and disclosing to the Company's stockholders its position with respect to a transaction tender or exchange offer by a third party pursuant to such Acquisition Proposal could Rules 14d-9 and 14e-2 under the Exchange Act or from referring a third party to this Section 5.3(a) or making a copy of this Section 5.3(a) available to any third party; PROVIDED, HOWEVER, that in connection therewith the Company and the Board of Directors shall be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thethe provisions of Section 5.3(b).

Acquisition Proposals. Neither the (a) The Company nor any of will not, and will cause its subsidiaries shallofficers, directly or indirectlydirectors, through any officeragents, directoradvisors and Affiliates not to, agent or otherwise, solicit, initiate solicit or encourage the making of any proposal inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information proposals with respect to, or otherwise cooperate engage in any way withnegotiations concerning, or assist provide any confidential information to, or participate in, facilitate or encourage, have any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party person relating to, any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) providing (or authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, any person who delivers has made a bona fide written Acquisition Proposal received after the date hereof which was did not solicited result from a breach of this Section 6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), if and only to the extent that, (x) in the case of actions referred to in clause (ii), the Company's Board of Directors determines in good faith that such Acquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the case of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company's Board of Directors, after having consulted with and considered the advice of outside counsel to such Board, determines in good faith that providing such information or encouraged engaging in such negotiations or discussions, or making such recommendation, is required in order to discharge the directors' fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a third party on terms which the Company's Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving Parent at least five Business Days to respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counselany parties other than Parent, that failing with respect to take such action is reasonably determined to constitute a breach any of the fiduciary duties foregoing. The Company shall promptly (within 24 hours) advise Parent following the receipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to person making such Acquisition Proposal), and advise Parent of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal that promptly upon the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theoccurrence thereof.

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof, the Company nor shall not and shall cause the Subsidiaries not to, and shall use its best efforts to cause the officers, directors, employees and other agents and advisors (including, without limitation, any investment bank, attorney or accountant retained by the Company) of the Company and its subsidiaries shallSubsidiaries not to, directly or indirectly, through (i) take any officer, director, agent or otherwise, action to solicit, initiate or knowingly encourage the making of or otherwise knowingly facilitate any proposal Acquisition Proposal or offer any inquiries, proposals or offers from any Person (other than Parent or Merger Sub) relating to any acquisition Acquisition Proposal, (ii) grant any waiver or purchase release under any standstill or similar agreement with respect to any class of all or (other than in the ordinary course equity securities of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any Subsidiary or (iii) furnish any information to or participate in any discussions or negotiations with any Person that has made or, to the Knowledge of its subsidiaries or any recapitalizationthe Company, business combination, consolidation, merger, liquidation, dissolution or similar transaction with intends to make an Acquisition Proposal except to the Company or any of its subsidiaries or any other transaction extent the consummation of which would or foregoing could not reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected relevant to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that nothing contained in this Section 7.4(a) shall prohibit the Company may furnish information Board from taking any action described in clause (iii) above with respect to any Person that has made an unsolicited (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar as such term relates to the agreement referred to in Section 4.02(b)), period from and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date hereof) bona fide written Superior Proposal if, and only to the extent that, (A) the acceptance for payment of this Agreement if any Shares pursuant to the Board reasonably Offer shall not have occurred, (B) the Board, after consultation with outside legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach would, in the absence of the foregoing proscriptions, be required by its fiduciary duties of under the Board DGCL or its duties or obligations under other applicable Law, and (iiC) prior to taking such action, the Company receives from such Person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after consultation with determining to take any action described in clause (iii) of the preceding sentence, the Company shall notify Parent of any such Superior Proposal (including, without limitation, the material terms and receipt conditions thereof and the identity of advice from the Person making it), and shall thereafter inform Parent on a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point prompt basis of view than the Transactions (including any adjustment material changes to the terms and conditions proposed by Purchaser in response of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such Acquisition Proposal)third party. The Company shall, (iii) and shall cause its Subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its Subsidiaries to, immediately cease and cause to be terminated all discussions and negotiations, if any, that sufficient commitments have been obtained taken place prior to the date hereof with any parties with respect to such any Acquisition Proposal that Proposal. Nothing contained in this Agreement shall prevent the Board reasonably expects a transaction pursuant of Directors of the Company from complying with Rule 14e-2 under the Exchange Act with respect to such any Acquisition Proposal could Proposal; provided, however, that in connection therewith the Company and the Board of Directors shall be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thethe provisions of Section 7.4(b).

Acquisition Proposals. Neither the (a) The Company nor any of shall not, and shall cause its subsidiaries shalland their respective directors, directly officers, and employees not to, and shall use its reasonable best efforts to cause their respective consultants, attorneys, accountants, financial advisors, agents, investment bankers or indirectlyother representatives ("Representatives") not to (and shall not authorize or permit their respective Representatives to), through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate any inquiries with respect to or that could reasonably be expected to lead to, or the making of making, submission or announcement of, any proposal Acquisition Proposal, (ii) participate or offer from engage in any negotiations or discussions concerning, or furnish or provide access to its properties, books and records or any confidential information or data to, any Person relating to an Acquisition Proposal, or any inquiry or proposal that could reasonably be expected to lead to any Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (iv) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or purchase other similar agreement for any Acquisition Proposal; provided that it is understood and agreed that any determination or action by the Company Board Table of all Contents of Directors permitted under Section 7.1(b) or Section 7.1(d) shall not be deemed to be a breach or violation of this Section 7.1(a) or, in the case of Section 7.1(b)(i) - (iv), give Ultimate Parent or Parent a right to terminate this Agreement pursuant to Section 9.1(e)(ii). The Company shall, and shall cause its subsidiaries and their respective directors, officers and employees to, and shall use its reasonable best efforts to cause their respective Representatives to, (i) immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person (other than the Parties) in the ordinary course of business and not likely to interfere connection with the consummation an Acquisition Proposal, in each case that exist as of the Transactionsdate hereof, and (ii) any portion promptly request each Person (other than the Parties) that has prior to the date hereof executed a confidentiality agreement or similar agreement in connection with its consideration of the assets of, or any equity interest in, acquiring the Company to return or destroy all confidential information furnished to such Person by or on behalf of it or any of its subsidiaries prior to the date hereof. The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent in writing of the receipt of any Acquisition Proposal after the date hereof, which notice shall include a summary of the material terms of, including the identity of the Person making, such Acquisition Proposal. The Company shall keep Parent informed in all material respects on a prompt basis of the current status and material terms of any such Acquisition Proposal including any material changes in respect of any such Acquisition Proposal and shall deliver to Parent a summary of any material changes to any such Acquisition Proposal. Notwithstanding anything to the contrary herein, the Company may grant a waiver, amendment or release under any recapitalization, business combination, consolidation, merger, liquidation, dissolution confidentiality or similar transaction with standstill agreement to the extent necessary to allow for a confidential Acquisition Proposal to be made to the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by Board of Directors if the Company Board of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably Directors determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take such action is could be reasonably determined likely to constitute a breach of the be inconsistent with its fiduciary duties of the Board under applicable Law, Law and so long as the Company promptly notifies Parent thereof (iiincluding the identity of such counterparty) after consultation with and receipt granting any such waiver, amendment or release and, if requested by Parent, grants Parent a waiver, amendment or release of advice from a recognized investment banking firm, that such proposal is more favorable to any similar provision under the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheConfidentiality Agreement.

Acquisition Proposals. Neither (a) Subject to the other provisions of this Section 6.5, during the Interim Period, the Company nor shall not, and shall cause each of the Company Subsidiaries, and its and their officers and directors, managers or equivalent not to, and shall use its reasonable best efforts to cause any other Representatives of its subsidiaries shallthe Company or the Company Subsidiaries not to, directly or indirectly, through any officer, director, agent or otherwise, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the making of knowingly facilitate any proposal inquiry, discussion, offer or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofrequest that constitutes, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impedelead to, interfere witha Company Acquisition Proposal (provided that for purposes of this Section 6.5(a), prevent or materially delay the Merger or which would or could reasonably references in the definition of Company Acquisition Proposal to “twenty percent (20%)” shall be expected deemed to materially dilute the benefits to Purchaser of the Transactions be five percent (any communication with respect to the foregoing being 5%)) (an "Acquisition Proposal"“Inquiry”), (ii) or participate engage in any discussions or negotiations regarding, or furnish to any other Person Third Party any non-public information with respect toin connection with, or otherwise cooperate in any way with, or assist or participate in, knowingly facilitate or encouragein any way any effort by, any effort Third Party in connection with, any Company Acquisition Proposal or attempt by Inquiry, (iii) approve or recommend a Company Acquisition Proposal, or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other Person similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5(b)) providing for or relating to a Company Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) propose or agree to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither the (a) Company nor any of and its subsidiaries shall, and Company shall use its reasonable best efforts to cause each of its officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants and other agents (collectively "Company Representatives") immediately to, cease any discussions or negotiations with any Third Party (as defined in Section 9.3) that may be ongoing as of the date of this Agreement with respect to any Acquisition Proposal. Company and its subsidiaries shall not take, and Company shall use its reasonable best efforts to cause Company Representatives not to take, any action (i) to solicit, initiate, facilitate or knowingly encourage, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making or submission of any proposal Acquisition Proposal (including, without limitation, by taking any action that would make Section 203 of the DGCL inapplicable to an Acquisition Proposal), (ii) to enter into any agreement, arrangement or offer from any Person relating understanding with respect to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofAcquisition Proposal, or to agree to approve or endorse any equity interest inAcquisition Proposal or enter into any agreement, arrangement or understanding that would require Company to abandon, terminate or fail to consummate the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries Merger or any other transaction the consummation of which would or could reasonably be expected contemplated by this Agreement, (iii) to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") initiate or participate in any way in any discussions or negotiations regardingwith, or furnish to or disclose any other Person any nonpublic information with respect to, or otherwise cooperate any Third Party in connection with any way withAcquisition Proposal, or assist (iv) to grant any waiver or participate inrelease under, facilitate or encourageamend, any effort standstill, confidentiality or attempt similar agreement entered into by any other Person to do or seek any on behalf of the foregoingCompany; provided, however, that the Company may furnish information to (subjectthat, in each case, response to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal that did not result from a breach of this Section 6.5(a), Company (and Company Representatives) may (x) request clarifications from (but not enter into negotiations with or furnish nonpublic information to) any Third Party which was makes such written Acquisition Proposal if such action is taken solely for the purpose of obtaining information reasonably necessary to ascertain whether such Acquisition Proposal is a Superior Proposal, or (y) participate in discussions and negotiations with, request clarifications from, or furnish nonpublic information to, any Third Party which makes such written Acquisition Proposal if (A) such action is taken subject to a confidentiality agreement with terms not solicited or encouraged after more favorable to such Third Party than the terms of the Confidentiality Agreement (as in effect on the date of this Agreement if Agreement), (B) after consultation with outside legal counsel to Company and a nationally recognized investment bank, a majority of the members of the entire Board reasonably of Directors of Company determines in good faith by that such Acquisition Proposal is a Superior Proposal and (C) a majority vote (i) of the members of the entire Board of Directors of Company determines in good faith, after consultation with and receipt of receiving advice from its outside legal counsel to Company (which may be Company's regular outside counsel), that failing to take the taking of such action is reasonably determined necessary or appropriate to constitute a breach of comply with the fiduciary duties of the Board of Directors under applicable Applicable Law. Company shall use its reasonable best efforts to enforce, to the fullest extent permitted under Applicable Law, the provisions of any standstill, confidentiality or similar agreement entered into by or on behalf of Company (iiwhether before or after the date of this Agreement) after consultation in connection with the matters contemplated by this Section 6.5 including, where necessary, by seeking injunctions to prevent any breaches of such agreements and receipt of advice from a recognized investment banking firm, that such proposal is more favorable seeking to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to enforce specifically the terms and conditions proposed by Purchaser provisions thereof in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thecourt having jurisdiction.

Acquisition Proposals. Neither the (a) The Company agrees that neither it nor any of its subsidiaries Subsidiaries shall, directly and that it shall use its reasonable best efforts to cause its and their respective officers, directors, employees, agents and representatives, including any investment banker, attorney or indirectly, through any officer, director, agent accountant retained by or otherwise, solicit, initiate or encourage acting on the making behalf of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries Subsidiaries acting in their capacity as such (collectively, “Representatives”) not to (i) initiate, solicit or knowingly encourage or facilitate any recapitalizationinquiries, business combinationproposals, consolidationexpressions of interest, mergeroffers or requests for information or data with respect to, liquidationor that would reasonably be expected to lead to, dissolution the making or similar transaction with completion of, an Acquisition Proposal, (ii) engage or participate in any negotiations or discussions (other than to state that they are not permitted to have discussions or to seek clarification regarding the terms of an Acquisition Proposal) concerning, or provide or cause to be provided any non-public information or data relating to the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere Subsidiaries in connection with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", (iii) enter into any Contract relating to an Acquisition Proposal or participate in any negotiations regarding, (iv) resolve or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person agree to do or seek any of the foregoing; provided, however, it is understood and agreed that any determination or action by the Company may furnish Board or the Company expressly permitted under Section 5.4(b) or (c) or Section 7.1(c)(ii) shall not be deemed to be a breach of this Section 5.4(a). The Company agrees that it will immediately (A) cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, (B) terminate access by any other Person and its Representatives to any physical or electronic data room or other access to data or information to (subjectby the Company or any of its Subsidiaries, in each case, relating to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to or in Section 4.02(b)), and negotiate or otherwise engage in discussions connection with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after any transaction of the type described in the definition of Acquisition Proposal, (C) request the prompt return or destruction of all non-public information provided to any other Person or its Representatives in the 12 months immediately preceding the date of this Agreement if in connection with any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to result in an Acquisition Proposal and (D) enforce, and not waive or modify, the Board reasonably determines provisions of any confidentiality or non-disclosure agreement entered into with respect to any Acquisition Proposal or any potential transaction of the type described in good faith the definition of Acquisition Proposal (except for any standstill provision in such confidentiality or non-disclosure agreement). It is agreed that any breach of this Section 5.4 by a majority vote (i) after consultation with and receipt any Representative of advice from the Company or any of its outside legal counsel, that failing to take such action is reasonably determined to Subsidiaries shall constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to this Section 5.4 by the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until the earlier of (x) August 8, 2008, and (y) the date that is five days prior to the Mailing Date, the Company nor any of and its subsidiaries shalland their respective officers, directors, employees, consultants, agents, advisors, affiliates and other representatives (“Representatives”) shall have the right to, directly or indirectly, through (i) initiate, solicit and encourage Acquisition Proposals (as hereinafter defined), including by way of providing access to non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (as hereinafter defined); provided that the Company shall promptly provide to Parent any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, information concerning the Company or any of its subsidiaries that is provided to any person given such access that was not previously provided to Parent, and (ii) enter into and maintain discussions or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication negotiations with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, Proposals or otherwise cooperate in any way with, assist, participate in or assist facilitate any such inquiries, proposals, discussions or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoingnegotiations; provided, however, that the Company may furnish shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal after the date hereof, which notice shall include the identity of the person making such Acquisition Proposal and set forth in reasonable detail its material terms and conditions (including information relating to (subjectthe financing thereof), in each case, and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal and provide a copy of all written materials provided to receipt or by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation connection with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 7.3, the Company will not, nor will it permit any of its subsidiaries shallto, directly nor will it authorize or indirectly, through direct any officer, director, agent or otherwiseemployee of or any investment banker, solicitattorney, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofaccountant, or any equity interest inother advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate, or encourage the submission of any recapitalization, business combination, consolidation, merger, liquidation, dissolution Acquisition Proposal or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"ii) or participate in any discussions or negotiations regarding, or furnish to any other Person person any information with in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoingAcquisition Proposal; provided, however, that nothing contained in this Section 7.3(a) shall prohibit the Company may furnish Board from furnishing information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a person that makes an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged if, and only to the extent that (A) the Company Board, after the date of this Agreement if the Board reasonably consultation with independent legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined necessary for the Company Board to constitute a breach of the comply with its fiduciary duties of to the Board Company's stockholders under applicable Law, (iiB) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory, and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation consolation with and receipt of advice from a recognized investment banking firmits Financial Advisor, that such proposal is Acquisition Proposal would, if consummated, result in a transaction more favorable to the Company's shareholders stockholders from a financial point of view than the Transactions Offer and the Merger (including any adjustment such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (C) prior to taking such action, the Company (x) provides reasonable notice to 41 49 Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement between Parent and the Company. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such third party, and any material changes to the terms and conditions proposed by Purchaser in response to of such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants, and other agents and representatives to, cease and terminate any existing activities, discussions, or negotiations with any parties conducted heretofore in respect of any possible Acquisition Proposal and shall notify each party that it, or any officer, director, investment advisor, financial advisor, attorney, or other agent or representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board reasonably expects a transaction pursuant no longer seeks the making of any Acquisition Proposal. The Company shall take all necessary steps to such Acquisition Proposal could be consummated and (ivpromptly inform the individuals or entities referred to in the first sentence of this Section 7.3(a) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the obligations undertaken in this Section 7.3(a).

Acquisition Proposals. Neither the (a) The Company nor any will not, will cause its Subsidiaries, and each of their respective directors and officers, not to, and will instruct its subsidiaries shall, directly or indirectly, through any officer, director, agent or otherwiseRepresentatives not to: (i) initiate, solicit, initiate or knowingly encourage or knowingly facilitate the making submission or announcement of any inquiry, proposal or offer from any Person relating to any acquisition that constitutes or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", (ii) engage in, enter into or participate in any discussions or negotiations regardingwith any Person with respect to any Acquisition Proposal or (iii) provide any non-public information, or furnish afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, any Person (other than Parent, Merger Sub, or any designees of Parent or Merger Sub) in connection with any Acquisition Proposal. The Company will, and will cause its Subsidiaries to, and will instruct its Representatives to, (x) immediately cease any solicitation, discussions, or negotiations with any Person (other than Parent, Merger Sub, or any designees of Parent or Merger Sub) with respect to any other Person any information with respect toAcquisition Proposal, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (y) to the extent the Company has the right to do or seek any of the foregoing; providedso, however, that the Company may furnish information to within two (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after 2) Business Days following the date of this Agreement if Agreement, request in writing the Board reasonably determines prompt return or destruction of all confidential information provided by or on behalf of the Company or its Subsidiaries to any such Person, and (z) terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal. Notwithstanding the foregoing, the Company and its Representatives, solely in good faith by response to an inquiry or proposal that did not result from a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a material breach of the fiduciary duties of the Board under applicable Lawthis Section 5.3(a), may (iiA) after consultation with seek to clarify and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to understand the terms and conditions proposed of any inquiry or proposal made by Purchaser in response any Person solely to determine whether such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such inquiry or proposal constitutes an Acquisition Proposal and (B) inform a Person that has made or, to the Board reasonably expects a transaction pursuant to such Knowledge of the Company, is considering making, following the date hereof, an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the provisions of this Section 5.3.

Acquisition Proposals. Neither The Company agrees that it shall not, and shall cause its Subsidiaries and its and its Subsidiaries' representatives not to, solicit or encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any person relating to, any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company nor or any of its subsidiaries shall, directly Subsidiaries or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire in any Person relating to any acquisition manner a substantial equity interest in, or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any a substantial portion of the assets or deposits of, or any equity interest in, the Company or any of its subsidiaries Subsidiaries, other than the transactions contemplated by this Agreement or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or Stock Option Agreement (any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impedeforegoing, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"); provided, that nothing contained in this Agreement shall prevent the Company Board from (i) making any disclosure to its shareholders if, in the good faith judgment of the Company Board, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) until the date of the Company Meeting, providing (or participate in any negotiations regarding, or furnish to any other Person any authorizing the provision of) information with respect to, or otherwise cooperate engaging in any way (or authorizing) such discussions or negotiations with, any person who has made a bona fide written Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.06; or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (iii) recommending such an Acquisition Proposal to do or seek any of its shareholders if and only to the foregoing; provided, however, that the Company may furnish information to (subjectextent that, in each case, to receipt by the Company case of a confidentiality agreement on terms substantially similar to the agreement actions referred to in Section 4.02(b)clause (ii) or (iii), and negotiate or otherwise engage in discussions with, any party who delivers a written (x) such Acquisition Proposal which was not solicited or encouraged is a Superior Proposal, (y) the Company Board, after having consulted with and considered the date advice of this Agreement if outside counsel to the Board reasonably Company Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation is required in order to discharge the directors' fiduciary duties in accordance with the NCBCA and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a majority vote third party on terms that the Company Board determines in its good faith judgment, after receiving the advice of its financial advisors (i) after consultation with and receipt of whose advice from its outside legal counselshall be communicated to the Acquiror), that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is be more favorable to the Company's shareholders from a financial point of view to its shareholders than the Transactions Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any adjustment such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving the Acquiror at least five business days to respond to such third-party Acquisition Proposal once the Board has notified the Acquiror that in the absence of any further action by the Acquiror it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by the Acquiror. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than the Acquiror, with respect to any of the foregoing. The Company shall promptly (within 24 hours) advise the Acquiror following the receipt by it of any Acquisition Proposal and the material terms and conditions proposed by Purchaser in response to thereof (including the identity of the person making such Acquisition Proposal), and advise the Acquiror of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal promptly upon the occurrence thereof. Nothing contained in this Section 6.06 or any other provision of this Agreement will prohibit the Company or the Company Board from notifying any third party that contacts the Board reasonably expects a transaction pursuant to such Company on an unsolicited basis after the date hereof concerning an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the Company's obligations under this Section 6.06.

Acquisition Proposals. Neither (a) Except as set forth in this Section 5.4, the Company agrees that neither it nor any of its subsidiaries Subsidiaries shall, directly or indirectlyand that it shall cause (or, through any officer, director, agent or otherwise, solicit, initiate or encourage in the making of any proposal or offer from any Person relating to any acquisition or purchase case of all or (Representatives other than in the ordinary course of business officers or directors, use reasonable best efforts to cause) its and not likely to interfere with the consummation of the Transactions) their respective officers, directors, employees, agents and representatives, including any portion of the assets ofinvestment banker, attorney or any equity interest in, accountant retained by the Company or any of its subsidiaries Subsidiaries (collectively, “Representatives”), not to, directly or indirectly, (i) initiate, solicit or knowingly encourage (including by providing information) any recapitalizationinquiries, business combinationproposals or offers with respect to, consolidationor the making or completion of, mergeran Acquisition Proposal, liquidation(ii) engage or participate in any negotiations or discussions (other than to state that they are not permitted to have discussions) concerning, dissolution or similar transaction with provide or cause to be provided any non-public information or data relating to the Company or any of its subsidiaries Subsidiaries in connection with, an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal (iv) approve, endorse or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other transaction similar agreement relating to an Acquisition Proposal or (v) fail to include the consummation Company Recommendation in the Proxy Statement; provided, however, it is understood and agreed that any determination or action by the Company Board permitted under Section 5.4(b) or (c) or Section 7.1(c)(ii) shall not be deemed to be a breach of which would this Section 5.4(a). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company agrees that it will and will cause the Subsidiaries of the Company to, and will instruct and use its reasonable best efforts to cause its and their respective Representatives to, (i) cease immediately and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore that constitute or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation terminate any such third party’s access to any physical or electronic data rooms with respect to an Acquisition Proposal and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) request that sufficient commitments have been obtained with respect to any such Acquisition Proposal that third party and its Representatives promptly (A) destroy or return all confidential information concerning the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated Company or any Subsidiaries of the Company furnished by or on behalf of the Company or any Subsidiaries of the Company and (ivB) destroy all analyses and other materials prepared by or on behalf of such Person that contain, reflect or analyze such Acquisition Proposal is not subject confidential information, in the case of the foregoing clauses (ii) and (iii), to the extent required by and in accordance with the terms of the applicable confidentiality agreement between the Company or any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof its Subsidiaries and such Person.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that (i) it and its subsidiaries shallofficers and directors shall not, and (ii) it shall use reasonable best efforts to ensure that its representatives shall not, in each case (A) directly or indirectly, through initiate, solicit or knowingly encourage or facilitate any officer, director, agent inquiries or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing acquisition, including by way of a tender offer, exchange offer, merger, consolidation or other business combination, of (x) an equity interest representing a 15% or greater economic or voting interest in the Company, or (y) the assets, securities or other ownership interests of or in the Company representing 15% or more of the consolidated assets of the Company, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an ("Acquisition Proposal"), or (B) directly or participate indirectly, engage in any negotiations regardingconcerning, or furnish provide access to its properties, books and records or any other Person any confidential information with respect or data to, or otherwise cooperate in any way withPerson (including, or assist or participate inwithout limitation, facilitate or encourageBio-Imaging Technologies, any effort or attempt by any other Person to do or seek Inc. and any of the foregoingits affiliates or advisors) relating to, an Acquisition Proposal; provided, however, that at any time prior to the acceptance for payment of Shares pursuant to the Offer, the Company may furnish information to (subjectand its representatives may, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such a written Acquisition Proposal that the Board reasonably expects of Directors of the Company determines, in good faith, after consultation with its financial advisors, constitutes a transaction pursuant Superior Proposal, and which Acquisition Proposal did not result from a breach of this Section 6.6(a), (x) provide access or furnish information with respect to the Company to the Person making such Acquisition Proposal could be consummated (and its representatives) pursuant to a customary confidentiality agreement and (ivy) that engage in discussions or negotiations with the Person making such Acquisition Proposal is not (and its representatives) regarding such Acquisition Proposal; provided further, however, that, subject to the right of the Company to withhold information where such disclosure would contravene any regulatory approvals Law or other legalbinding agreement entered into prior to the date of this Agreement, financial the Company shall promptly provide to Parent any non-public information that is provided to the Person making such Acquisition Proposal or other restrictions its representatives that could reasonably was not previously provided to Parent or Merger Sub. The Company will, and will cause its agents and representatives to, promptly cease and cause to be expected terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to prevent consummationany Acquisition Proposal. TheThe Company shall also promptly (within two (2) Business Days) notify Parent of the receipt of any Acquisition Proposal after the date hereof, which notice shall include the identity of the Person making such Acquisition Proposal and the material terms and conditions thereof, and will keep Parent apprised of any related material developments, discussions and negotiations related thereto.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate inquiries or proposals with respect to any proposal Acquisition Proposal, (ii) engage or offer from participate in any Person negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition Acquisition Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or purchase is considering making, an Acquisition Proposal, of all or (other than the existence of the provisions of this Section 6.12(a); provided, that, prior to the adoption of this Agreement by the stockholders of the Company by the Requisite Company Vote, in the ordinary course event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of business Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not likely to interfere with result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the consummation of the Transactions) any portion of the assets of, or any equity interest inforegoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal. The Company will promptly (within twenty-four (24) hours) advise Parent following receipt of any Acquisition Proposal or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of inquiry which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thesubstance thereof

Acquisition Proposals. Neither (a) The Company shall not, and shall cause each of its Subsidiaries not to, and shall cause each of the Company nor foregoing Person’s respective directors, officers, management personnel, Affiliates, investment bankers, financial advisors, attorneys, and other representatives (collectively, “Representatives”) retained by it or any of its subsidiaries shallSubsidiaries not to, directly or indirectlyindirectly through another Person, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofknowingly encourage, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or take any other transaction the consummation of action designed to, or which would or could reasonably be expected to impedeto, interfere withfacilitate, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information with respect relating to, any Acquisition Proposal or otherwise cooperate (iii) amend or modify in any way withmaterial respect, or assist terminate or participate in, facilitate waive any material right or encouragebenefit under, any effort confidentiality, standstill or attempt similar agreement with any Person (whether or not a Company Material Contract). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any other Person to do Subsidiary of the Company and/or any Representative of the Company or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute Subsidiaries shall be a breach of the fiduciary duties of the Board under applicable Law, (iithis Section 6.04(a) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to by the Company's shareholders from a financial point . The Company shall, and shall cause its Subsidiaries to, and shall cause each of view than 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 Acquisition Proposal and request the Transactions (including prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any adjustment time prior to obtaining the terms and conditions proposed by Purchaser Company Shareholder Approval, in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such a bona fide written Acquisition Proposal that the Board of Directors of the Company reasonably expects determines (after consultation with outside counsel and a transaction pursuant financial advisor of reputation comparable to those used by the Company in connection with entering into this Agreement) constitutes or would reasonably likely lead to a Superior Proposal, and which Acquisition Proposal did not result from a breach of this Section 6.04(a), the Company may, subject to compliance with Section 6.04(c), (A) furnish non-public information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal could be consummated (and its Representatives) pursuant to a customary confidentiality and standstill agreement, provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrently with the time it is provided to such Person, and (ivB) that participate in discussions or negotiations with the Person making such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The(and its Representatives) regarding such Acquisition Proposal.

Acquisition Proposals. Neither the (a) The Company nor any of its subsidiaries shall, directly and shall cause its officers, directors, employees, representatives and agents to, immediately cease any existing discussions or indirectly, through negotiations with any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating parties conducted heretofore with respect to any acquisition Acquisition Proposal (as defined in Section 6.2(b) hereof). The Company and its Subsidiaries will not, and will cause their respective officers, directors, employees and investment bankers, attorneys, accountants or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, agents retained by the Company or any of its subsidiaries Subsidiaries not to, (i) solicit, directly or through an intermediary, any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information inquiries with respect to, or otherwise cooperate the making of, any Acquisition Proposal, or (ii) except as permitted below, engage in any way negotiations or discussions with, or assist furnish any confidential information relating to the Company or participate in, facilitate or encourageits Subsidiaries to, any effort Third Party (as defined in Section 6.2(b)) relating to an Acquisition Proposal (other than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in this Section 6.2, the Company (and any Person referred to above) may furnish information to, and participate in discussions or attempt negotiations with, any Third Party which submits an unsolicited written Acquisition Proposal to the Company if the Board by any other Person a majority vote determines, based as to do legal matters upon the advice of legal counsel, that furnishing such information or seek any of the foregoingparticipating in such discussions or negotiations is required by applicable law (including fiduciary principles thereof); provided, howeverthat nothing herein shall prevent the -------- Board from taking, and disclosing to the Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; and provided further, that the Company may furnish information to shall not -------- ------- enter into a written agreement providing for a Third Party Transaction (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to as defined in Section 4.02(b6.2(b)), and negotiate ) except concurrently with or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date termination of this Agreement if (except with respect to confidentiality agreements to the Board reasonably determines in good faith by extent expressly provided below). The Company shall promptly provide Parent with a majority vote reasonable description of any Acquisition Proposal received (i) after consultation with and receipt including a summary of advice all material terms of such Acquisition Proposal and, unless it is prohibited from its outside legal counseldisclosing the same, that failing to take such action is reasonably determined to constitute a breach the identity of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to Person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such . The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal that with a Third Party. In no event shall the Board reasonably expects a transaction pursuant Company provide material, non-public information to such any Third Party making an Acquisition Proposal could be consummated unless such party enters into a confidentiality or similar agreement containing provisions believed by the Company to reasonably protect the confidentiality of such information. Promptly after entering into any confidentiality or similar agreement with any Person on or after February 6, 1996, the Company shall notify Parent of such event and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theidentify the Person with whom the agreement was executed.

Acquisition Proposals. Neither From and after the date hereof, the Company nor any of its subsidiaries shallwill not and the Company and the Subsidiaries will use their best efforts to cause their respective directors, officers, employees, financial advisors, legal counsel, accountants and other agents and representatives not to initiate or solicit, directly or indirectly, through any officer, director, agent inquiries or otherwise, solicit, initiate or encourage the making of any proposal or offer from with respect to, engage in negotiations concerning, provide any Person information or data to, any person relating to any acquisition acquisition, business combination or purchase (including by way of a tender or exchange offer) of (i) all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any significant portion of the assets ofof the Company and the Subsidiaries, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% or more of the outstanding shares of capital stock of any Subsidiary of the Company (a "Takeover Proposal"), other than the Merger; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form) or entering into discussions or negotiations with any person or group that makes a Superior Proposal that was not solicited by the Company or which did not otherwise result from a breach of this Section 7.2, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside legal counsel, determines in good faith that such action is reasonably necessary for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) concurrently with furnishing such information to, or any equity interest inentering into discussions or negotiations with, such person or group making this Superior Proposal, the Company provides written notice to Parent to the effect that it is furnishing information to, or any of its subsidiaries entering into discussions or any recapitalizationnegotiations with, business combinationsuch person or group, consolidation, merger, liquidation, dissolution or similar transaction with and (C) the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser keeps Parent informed of the Transactions (any communication status and all material information including the identity of such person or group with respect to any such discussions or negotiations to the foregoing being an extent such disclosure would not constitute a violation of any applicable law. For purposes of this Agreement "Acquisition Superior Proposal") or participate in " means any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any Takeover Proposal which the Board of Directors of the foregoingCompany concludes in its good faith judgment (based on the advice of outside legal counsel and a financial advisor of a nationally recognized reputation) to be more favorable to the Company's stockholders than the Merger and for which financing, to the extent required, is fully committed, subject to customary conditions; provided, however, that the reference to "15%" in clauses (ii) and (iii) of the definition of Takeover Proposal shall be deemed to be references to "51%". The Company may furnish will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person conducted heretofore with respect to any of the foregoing and will notify Parent immediately in writing if any such inquiries or proposals (including the material terms and conditions thereof) are received by, any such information is requested from, or any such negotiations or discussions are sought to (subjectbe initiated or continued with, the Company. Nothing contained in this Section 7.2 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to its stockholders if, in each case, to receipt by the Company good faith judgment of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) of Directors of the Company, after consultation with and receipt of advice from its outside legal counsel, that failing failure so to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board disclose may be inconsistent with its obligations under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thelaw.

Acquisition Proposals. Neither (a) Except as set forth in Section 6.4(b) through (f), the Company agrees that neither it nor any of its subsidiaries Subsidiaries shall, and that it shall direct its and their respective Representatives not to, and shall not knowingly permit its and their respective Representatives to, directly or indirectly, through (i) initiate, solicit or knowingly encourage or knowingly facilitate any officerinquiries, directorproposals or offers with respect to, agent or otherwiseconstitutes or could reasonably be expected to lead to, solicit, initiate or encourage the making of or completion of, an Acquisition Proposal, (ii) engage or participate in any proposal negotiations or offer from any Person relating to any acquisition or purchase of all or discussions (other than in the ordinary course of business and to state that they are not likely permitted to interfere with the consummation of the Transactionshave discussions) any portion of the assets ofconcerning, or provide or cause to be provided any equity interest in, non-public information or data relating to the Company or any of its subsidiaries or any recapitalizationSubsidiaries, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way connection with, or assist with or participate infor the purpose of knowingly encouraging or knowingly facilitating, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such an Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such approve, endorse or recommend any Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and Proposal, or (iv) that such approve, endorse or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationlead to an Acquisition Proposal; provided, however, it is understood and agreed that any determination or action by the Company Board permitted under Section 6.4(b), (c) or (e) or Section 8.1(c)(ii) (to the extent Section 6.4(e) has been complied with) shall not be deemed to be a breach of this Section 6.4(a). TheOn the date hereof, the Company will immediately cease and terminate any existing activities, discussions or negotiations by the Company and its Subsidiaries, and direct its Representatives to cease and terminate, and not knowingly permit its Representatives to continue, all such activities, discussions and negotiations with any Persons with respect to any Acquisition Proposal.

Acquisition Proposals. Neither From and after the date hereof, the Company nor will not, and will not authorize or permit any of its subsidiaries shallofficers, directors, employees or agents (its "Representatives"), directly or indirectly, through any officer, director, agent or otherwise, to solicit, initiate or knowingly encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal which constitutes or offer may reasonably be expected to lead to an Acquisition Proposal (as defined below) from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofperson, or engage in any equity interest indiscussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however that notwithstanding any other provision hereof: (a) the Special Committee may at any time prior to the receipt of Company Stockholder Approval, engage in discussions or negotiations with a third party who (without any of its subsidiaries solicitation, initiation, encouragement, discussion or any recapitalizationnegotiation, business combinationdirectly or indirectly, consolidation, merger, liquidation, dissolution by or similar transaction with the Company or any of its subsidiaries Representatives after the date hereof) seeks to initiate such discussions or any negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the extent that, (i) (A) the third party has first made an Acquisition Proposal that is more favorable to the Company and its stockholders (other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser than COLA and holders of the Transactions Excluded Shares) than the transactions contemplated by this Agreement and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (any communication as determined in good faith in each case by the Special Committee after consultation with respect its financial advisors) and (B) the Special Committee shall conclude in good faith, after considering applicable provisions of state law, on the basis of oral or written advice of outside counsel (who may be the Company's regularly engaged independent counsel) that such action is necessary for the Special Committee to act in a manner consistent with its fiduciary duties under applicable law and (ii) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company (A) provides three Business Days' prior written notice to COLA to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, effect that the Company may furnish it is furnishing information to or entering into discussions or negotiations with such person or entity and (subject, in each case, to receipt by the Company of a B) receives from such person or entity an executed confidentiality agreement on terms substantially similar to in reasonably customary form; (b) the agreement Special Committee may withdraw or modify its recommendation referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers Article 6.3 following receipt of a written bona fide unsolicited Acquisition Proposal which was not solicited or encouraged after the date of this Agreement from a third party if the Board reasonably determines in good faith by a majority vote (i) the Special Committee, after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a Financial Advisor or another nationally recognized investment banking firm, determines in good faith in the exercise of its fiduciary obligations under applicable law that such proposal the Acquisition Proposal is more favorable to the Company and its stockholders (other than COLA and holders of the Excluded Shares) than the transactions contemplated by this Agreement and (ii) the Special Committee, after consultation with independent legal counsel (who may be the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposalregularly engaged independent counsel), determines in good faith that such action is necessary for the Special Committee to comply with its fiduciary obligations under applicable law and/or (iiic) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects of Directors, upon the recommendation of the Special Committee, may comply with Rule 14e-2 promulgated under the Exchange Act with regard to a transaction pursuant to tender or exchange offer or take any other required action (including, without limitation, the making of such Acquisition Proposal could public disclosures as may be consummated and (ivnecessary or advisable under applicable securities laws) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theand

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of any proposal knowingly facilitate inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "any Acquisition Proposal", (ii) engage or participate in any negotiations regardingwith any person concerning any Acquisition Proposal, or furnish (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any other Person Acquisition Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any information inquiries with respect to, or otherwise cooperate in any way withis considering making, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any an Acquisition Proposal of the foregoingexistence of the provisions of this Section 6.10(a); providedprovided that, however, that prior to the adoption of this Agreement by the stockholders of the Company may furnish information to (subjectby the Requisite Company Vote, in each case, to receipt by the event the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a receives an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the and its Board reasonably determines of Directors concludes in good faith by a majority vote (i) after consultation with and receipt receiving the advice of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with counsel and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (ivfinancial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not subject to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have provided such information to Parent and entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheAcquisition Proposal.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Acquisition Proposal, except to notify such person of the making existence of the provisions of this Section 6.12(a); provided, that, prior to the date of the Company Meeting, in the event the Company receives an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.12(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that (1) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (2) failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information or data, or participating in any negotiations or discussions, in each case, permitted pursuant to the foregoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any proposal or offer from any Person relating confidential information provided to any acquisition or purchase of all or person (other than the Company) pursuant to such agreement. The Company will promptly (and in the ordinary course any event within twenty-four (24) hours) advise Parent following receipt of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, Acquisition Proposal or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of inquiry which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions substance thereof (including any adjustment to the terms and conditions proposed by Purchaser in response of and the identity of the person making such inquiry or Acquisition Proposal, copies of any written Acquisition Proposal and written summaries of any material oral communications relating to such an Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect and will keep Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither (a) From the date of this Agreement until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, Parent and the Company will not, nor will either party permit any of its subsidiaries shallto, nor will either party authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, Parent or the Company, as appropriate, or any of its subsidiaries to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or knowingly encourage the making submission of any proposal or offer from any Person relating to any acquisition or purchase of all Acquisition Proposal (as defined below) or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactionsii) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any discussions or negotiations regarding, or furnish to any person any non-public information in respect of, or knowingly take any other Person action to facilitate, any information with respect Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, or otherwise cooperate in any way withAcquisition Proposal, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that nothing contained in this Section 6.6(a) shall prohibit the Parent Board or the Company may furnish Board, as appropriate, from furnishing any information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a written person that makes an unsolicited bona fide Acquisition Proposal which was if, and only to the extent that (A) the Parent Stockholder Meeting or the Company Stockholder Meeting, as appropriate, shall not solicited have occurred, (B) the Parent Board or encouraged the Company Board, as appropriate, after the date of this Agreement if the Board reasonably consultation with outside legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take such action is reasonably determined to constitute a breach of the would be inconsistent with its fiduciary duties to the stockholders of Parent or the Board Company, as appropriate, under applicable Law, (ii) after consultation with and receipt as such duties would exist in the absence of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser limitation in response to such Acquisition Proposal)this Agreement, (iiiC) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Parent Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) or the Company Board, as appropriate, determines in good faith that such Acquisition Proposal is not subject reasonably likely to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thelead

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and use its commercially reasonable efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate inquiries or proposals with respect to any proposal Acquisition Proposal, (ii) engage or offer from participate in any Person negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition Acquisition Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or purchase is considering making, an Acquisition Proposal, of all or (other than the existence of the provisions of this Section 6.12(a); provided that, prior to the approval of this Agreement by the shareholders of the Company by the Requisite Company Vote, in the ordinary course event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of business Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not likely to interfere with result in a violation of its fiduciary duties under applicable law; provided further, that, prior to providing any nonpublic information permitted to be provided pursuant to the consummation of the Transactions) any portion of the assets of, or any equity interest inforegoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its commercially reasonable efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal. The Company will promptly advise Parent following receipt of any Acquisition Proposal or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of inquiry which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions substance thereof (including any adjustment to the material terms and conditions proposed by Purchaser in response to of and the identity of the person making such inquiry or Acquisition Proposal), and will keep Parent reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall (iiiA) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that sufficient commitments have been obtained was established in connection with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated involving the Company and (ivB) that such Acquisition Proposal use its commercially reasonable efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof and, in accordance therewith. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not subject to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any regulatory approvals or other legalAcquisition Proposal. As used in this Agreement, financial or other restrictions that could reasonably be expected to prevent consummation. The“

Acquisition Proposals. Neither the (a) The Company nor any of and its subsidiaries shallSubsidiaries will not, directly and will cause their respective officers, directors, employees and investment bankers, attorneys or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, agents retained by the Company or any of its subsidiaries Subsidiaries not to, (i) initiate or solicit, directly or indirectly, any recapitalization, business combination, consolidation, merger, liquidation, dissolution inquiries or similar transaction with the Company or making of any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", or (ii) except as permitted below, engage in negotiations or participate in any negotiations regardingdiscussions with, or furnish any information or data to any third party relating to an Acquisition Proposal (other Person any information with respect to, than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in this Section 6.2 or otherwise cooperate in any way withother provision of this Agreement, the Company and the Board (i) may participate in discussions or assist negotiations (including, as a part thereof, making any counterproposal) with or participate infurnish information to any third party if the Board determines in good faith, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, howeverafter consultation with its counsel, that the Company failure to participate in such discussions or negotiations or to furnish such information may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the Board's fiduciary duties of the Board under applicable Lawlaw, and (ii) after consultation with shall be permitted to (X) take and receipt of advice from a recognized investment banking firm, that such proposal is more favorable disclose to the Company's shareholders from stockholders a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained position with respect to the Offer or the Merger or another tender or exchange offer by a third party, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 of the Exchange Act or (Y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its counsel, that the failure to take such action may constitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. The Company shall promptly provide Purchaser with a copy of any written Acquisition Proposal received and inform Purchaser promptly and on a reasonable basis of the status and content of any discussions with such a third party (provided that the Company shall not be obligated so to provide such Acquisition Proposal that or to inform Purchaser if the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) determines in good faith, after consultation with its counsel, that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theaction may constitute a breach of the Board's fiduciary duties under applicable law).

Acquisition Proposals. Neither 5.5.1 From and after the date hereof and until and including the Effective Time (or earlier termination of this Agreement), the Company shall immediately cease and cause to be terminated any activities, discussions or negotiations with respect to an Acquisition Proposal (as defined herein), and the Company shall not, nor shall it permit any Subsidiary, or authorize or permit any of its subsidiaries shallofficers, directors or employees or holders of more than five percent of its outstanding shares of Common Stock or any investment banker, financial advisor, attorney, accountant or other representative or agent of the Company or any Subsidiary, to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate initiate, or encourage (including by way of furnishing or otherwise providing, or providing access to nonpublic information) any Acquisition Proposal; (ii) participate in any discussions or negotiations relating to any Acquisition Proposal (or any inquiry relating to an Acquisition Proposal) or take any other action to facilitate any inquiries or the making of any proposal or offer from any Person relating to any acquisition or purchase of all that constitutes an Acquisition Proposal; or (other than iii) enter into any letter of intent, agreement in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, principle or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication definitive agreement with respect to the foregoing being an "any Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that nothing contained in this Section 5.5 shall prohibit the Company may furnish or the Board from furnishing nonpublic information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a written person or entity with respect to any unsolicited Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if (but only if): (a) the Board determines reasonably determines and in good faith by a majority vote (i) faith, after due investigation and after consultation with and receipt based upon the advice of advice from its outside legal counselfinancial advisor, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject a Superior Proposal (as defined below); (b) the Board determines reasonably and in good faith, after due investigation and after consultation with and based upon the advice of outside counsel, that the failure to any regulatory approvals take such action would cause the Board to violate its fiduciary duties to stockholders under applicable law in the context of the Transactions; and (c) the Company (x) provides at least two business days' notice to Acquiror to the effect that it is taking such action and (y) receives from such person or other legalentity an executed confidentiality agreement substantially similar to the Confidentiality Agreement. Notwithstanding the foregoing, financial or other restrictions that could reasonably be expected to prevent consummation. Thenothing in this Section 5.5 will restrict the Company from effecting the Power Facility Sales as contemplated hereby.

Acquisition Proposals. Neither (a) Subject to Section 6.06(d) of this Agreement, the Company shall not, nor shall it permit any of its subsidiaries shallSubsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectlyindirectly through another person, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage encourage, or take any other actions designed to facilitate, any inquiries or the making of any proposal which constitutes an Acquisition Proposal, (ii) participate in any discussions or offer from negotiations regarding any Person relating to Acquisition Proposal, (iii) provide any acquisition information or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication data with respect to the foregoing being an "Acquisition Proposal") Company or participate in any negotiations regarding, or furnish its Subsidiaries to any other Person in connection with an Acquisition Proposal or (iv) grant any information waiver or release under any standstill or similar agreement with respect to the Company Common Stock. The Company and its officers and directors will cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationlead to, any Acquisition Proposal. TheNotwithstanding the foregoing, if the Board of Directors of the Company reasonably determines, after consultation with its financial advisors and outside legal counsel, that it has received an Acquisition Proposal that may reasonably lead to a Superior Proposal (as defined herein), the Company may furnish information and access to the Person who has submitted such Superior Proposal pursuant to confidentiality agreements with terms no less restrictive than the Confidentiality Agreement (July 27, 2000 version), and may participate in discussions and negotiate with such Person concerning any proposed merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company. For the purposes of this Agreement, "SUPERIOR PROPOSAL" shall mean any BONA FIDE written Acquisition Proposal made by a third party that did not result from a violation of this Agreement and which a majority of the Company Board determines in good faith (based on the advice of its financial advisor and the advice of outside legal counsel), within 45 days from the date hereof, to represent superior value, from a financial point of view, to the shareholders of the Company as compared to the transactions contemplated by this Agreement (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the identity of the offeror).

Acquisition Proposals. Neither the Company nor any Subsidiary of the Company nor any of their respective officers, directors or Employees shall, and the Company shall direct and cause its subsidiaries shalland such Subsidiaries’ officers, directors and Employees not to, directly or indirectly, through any officer, director, agent or otherwise(a) initiate, solicit, initiate encourage or encourage otherwise take any action to facilitate any inquiries or the making of any proposal or offer from with respect to an Acquisition Proposal or (b) engage in any Person relating negotiations concerning, or provide any confidential information or data to, or have any discussions with, or afford access to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion properties, assets or books and records of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect Subsidiaries to, or otherwise cooperate in enter into any way agreement, commitment or arrangement with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person relating to do or seek any of the foregoingan Acquisition Proposal; provided, however, that that, so long as the Company may furnish has not breached in any material respect any of its obligations under this Section 8.2 or Section 8.3, nothing contained in this Agreement shall prevent the Company, its directors, officers, or Representatives, prior to the approval and adoption of this Agreement and the transaction contemplated hereby at the Company’s Stockholder Meeting, from (i) providing information in response to a request therefor by a third party who has made an unsolicited written bona fide Acquisition Proposal to acquire all of the issued and outstanding Company Stock, or all or substantially all of the Company’s assets, if the Board of Directors of the Company receives from the third party so requesting such information an executed confidentiality agreement and contemporaneously provides such information to Buyer; (subjectii) engaging in any negotiations or discussions with any third party who has made an Acquisition Proposal described in clause (i) above; or (iii) withdrawing or modifying in a manner adverse to Buyer or Merger Sub its recommendation in favor of the Merger and this Agreement or recommending to the stockholders of the Company an Acquisition Proposal described in clause (i) above if, in each casesuch case referred to in clause (i) or clause (ii) above, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that taking such action is required in order to receipt comply with the fiduciary duties of the members of the Board of Directors of the Company under applicable Law, and in each such case referred to in clause (iii) above, (A) the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that taking such action is required in order to comply with the fiduciary duties of the members of the Board of Directors of the Company under applicable Law and (B) the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal referred to in clause (iii) above constitutes a Superior Proposal. The Company shall immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company or any Subsidiary of a confidentiality agreement on terms substantially similar the Company, or any of their respective officers, directors or Employees with any parties conducted heretofore with respect to any Acquisition Proposal. The Company shall (y) as promptly as reasonably practicable (but in no event later than the agreement referred day after receipt) notify Buyer if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to in Section 4.02(b)), and negotiate be initiated or otherwise engage in discussions continued with, any such third party who delivers a written and (z) identify the terms and conditions of any Acquisition Proposal which was not solicited (including any subsequent changes, modifications and amendments thereto) and the identity of the third party making such Acquisition Proposal. Nothing contained in this Agreement shall prohibit the Company or encouraged after the Board of Directors of the Company from taking and disclosing to the Company’s stockholders a position with respect to a tender offer or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with respect to any Acquisition Proposal. During the period from the date of this Agreement if through the Board reasonably determines in good faith by Effective Time, the Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries is a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theparty.

Acquisition Proposals. Neither the (a) The Company nor and its officers, directors, employees, representatives and agents shall immediately cease any of its subsidiaries shall, directly existing discussions or indirectly, through negotiations with any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating parties conducted heretofore with respect to any acquisition Acquisition Proposal (as defined in Section 6.2(b) hereof). The Company and its Subsidiaries will not, and will use their best efforts to cause their respective officers, directors, employees and investment bankers, attorneys, accountants or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, agents retained by the Company or any of its subsidiaries Subsidiaries not to, (i) initiate or solicit, directly or indirectly, any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information inquiries with respect to, or otherwise cooperate the making of, any Acquisition Proposal, or (ii) except as permitted below, engage in any way negotiations or discussions with, or assist furnish any information or participate indata to any Third Party (as defined in Section 8.3(b) hereof) relating to an Acquisition Proposal (other than the transactions contemplated hereby and by the Ancillary Agreements). Notwithstanding anything to the contrary contained in this Section 6.2, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b))to, and negotiate or otherwise engage participate in discussions or negotiations (including, as a part thereof, making any counter- proposal) with, any party who delivers a Third Party which submits an unsolicited written Acquisition Proposal which was not solicited or encouraged after to the date of this Agreement Company if the Company's Board reasonably determines in good faith of Directors by a majority vote (i) after consultation determines in its good faith judgment, based as to legal matters upon the written opinion of legal counsel, that the failure to furnish such information or participate in such discussions or negotiations would likely constitute a breach of the Board's fiduciary duties under applicable Law; provided, that nothing herein shall prevent the Board from taking, and disclosing to the Company's shareholders, a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with and receipt regard to any tender offer; provided further, that the Board shall not recommend that the shareholders of advice from the Company tender their Shares in connection with any such tender offer unless the Board by a majority vote determines in its outside good faith judgment, based as to legal matters on the written opinion of legal counsel, that failing to take such action is reasonably determined to would likely constitute a breach of the Board's fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firmduty; provided further, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including Company shall not enter into any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained agreement with respect to such any Acquisition Proposal that except concurrently with or after the Board reasonably expects termination of this Agreement (except with respect to confidentiality and standstill agreements to the extent expressly provided below). The Company shall promptly provide Parent with a transaction pursuant to such copy of any written Acquisition Proposal could be consummated received and (iv) that such a written statement with respect to any non-written Acquisition Proposal is not subject received, which statement shall include the identity of the parties making the Acquisition Proposal and the terms thereof. The Company shall promptly inform Parent of the status and content of any discussions regarding any Acquisition Proposal with a Third Party. In no event shall the Company provide non-public information regarding the Retained Business to any regulatory approvals or other legal, financial or other restrictions that could Third Party making an Acquisition Proposal unless such party enters into a confidentiality agreement containing provisions designed to reasonably be expected to prevent consummation. Theprotect the confidentiality of such 25

Acquisition Proposals. Neither (a) From the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Company nor any of shall not, and shall cause its subsidiaries shallSubsidiaries, directly and its and its Subsidiaries’ officers, directors or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, employees or any equity interest ininvestment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its subsidiaries Subsidiaries (collectively, the “Representatives”) not to, directly or indirectly, (i) solicit, initiate, induce or knowingly encourage, or knowingly take any recapitalizationother action to facilitate, business combinationany inquiries, consolidationoffers, mergerdiscussions or the making of any proposal that constitutes or could reasonably be expected to lead to an Acquisition Proposal, liquidation, dissolution (ii) furnish any confidential or similar transaction with non-public information or data regarding the Company or any of its subsidiaries Subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish afford access to any other such information or data to any Person any information in connection with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such an Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial an inquiry or other restrictions indication of interest that could reasonably be expected to prevent consummationlead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any Person (other than Purchaser and its Subsidiaries), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) knowingly release any Person from, knowingly waive any provisions of, or fail to use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (vi) enter into or consummate any agreement, agreement in principle, letter of intent, arrangement or understanding contemplating any Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby. TheWithout limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.1 by the Company. Notwithstanding the foregoing, before the adoption and approval of this Agreement by the Company’s shareholders at the Company Shareholder Meeting, this Section 5.1(a) shall not prohibit the Company from furnishing confidential or non-public information regarding the Company and its Subsidiaries to, or entering into discussions with, any Person in response to an Acquisition Proposal that is submitted to the Company or its Subsidiaries by such Person (and not withdrawn) if (1) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, the Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, (2) the Company has not breached any of the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary obligations to the Company’s shareholders under applicable law, and (4) before furnishing any non-public information to, or entering into discussions with, such Person, the Company gives Purchaser written notice of the identity of such Person and of the Company’s intention to furnish confidential or non-public information to, or enter into discussions with, such Person and the Company receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the Confidentiality Agreement is to Purchaser and the Company also provides Purchaser, prior to or substantially concurrently with the time such information is provided or made available to such Person, any non-public information furnished to such other Person that was not previously furnished to Purchaser. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement, or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 5.1(a)) relating to any Acquisition Proposal.

Acquisition Proposals. Neither the (a) The Company will not, nor will it permit any of its subsidiaries shallto, directly nor will it authorize or indirectly, through permit any officer, director, agent director or otherwise, solicit, initiate or encourage the making employee of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest ininvestment 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 the submission of any recapitalization, business combination, consolidation, merger, liquidation, dissolution Acquisition Proposal or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"ii) or participate in any discussions or negotiations regarding, or furnish to any other Person person any information with in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; Acquisition Proposal provided, however, that nothing contained in this Section 6.5(a) shall prohibit the Company may furnish Board from furnishing any information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a written person that makes an unsolicited bona fide Acquisition Proposal which was if, and only to the extent that (A) the Company Stockholder Meeting shall not solicited or encouraged have occurred, (B) the Company Board, after the date of this Agreement if the Board reasonably consultation with independent legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined necessary for the Company Board to constitute a breach of comply with its duties to the fiduciary duties of the Board Company's stockholders under applicable Law, (iiC) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation with its Financial Advisor and receipt after taking into account the strategic benefits to be derived from the Merger and the long-term prospects of advice from Parent and its subsidiaries, would, if consummated, result in a recognized investment banking firm, that such proposal is transaction more favorable to the Company's shareholders from a financial point of view stockholders than the Transactions Merger (including any adjustment such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement between Parent and the Company. The Company shall notify Parent of any Acquisition Proposal (including, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions proposed by Purchaser in response to of such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect and shall promptly give Parent a copy of any information delivered to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated person which has not previously been reviewed by Parent. The Company has ceased and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legalterminated, financial or other restrictions that could reasonably be expected to prevent consummation. Theand has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other

Acquisition Proposals. Neither the The Company agrees that neither it nor --------------------- any of its subsidiaries Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, through any officer, director, agent or otherwiseinitiate, solicit, initiate knowingly encourage or encourage otherwise facilitate any inquiries or the making of any proposal or offer from with respect to an Acquisition Proposal. The Company further agrees that neither the Company nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, knowingly facilitate or encourage, any effort or attempt by any other Person to do make or seek any of the foregoingimplement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company may furnish or the Company Board from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement; (subjectC) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the shareholders of the Company, if and only to the extent that, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement such case referred to in Section 4.02(b)clause (B), and negotiate (C) or otherwise engage in discussions with(D) above, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after (i) the date of this Agreement if the Company Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, ) that failing to take such action is reasonably determined would be required in order for its directors to constitute a breach of the comply with their respective fiduciary duties of the Board under applicable Law, law and (ii) the Company Board determines in good faith (after consultation with and receipt of advice from a recognized investment banking firm, its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal is and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the Transactions Merger. An Acquisition Proposal which is received and considered by the Company in compliance with this Section 6.08 and which meets the requirements set forth in clause (including D) of the preceding sentence is herein referred to as a "Superior Proposal." The Company agrees that it will immediately cease and cause to be terminated any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal)existing activities, (iii) that sufficient commitments have been obtained discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposals. The Company agrees that it will notify Parent immediately if any such Acquisition Proposal that inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to Company or any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof its representatives.

Acquisition Proposals. Neither (a) From and after the Company nor date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII hereof, none of RLBI, any of its subsidiaries Subsidiaries or any of their respective directors, officers, employees, investment bankers, financial advisors, counsel, accountants, representatives or agents, shall, directly or indirectly: (i) make, through any officerencourage, director, agent or otherwisefacilitate, solicit, induce, assist or initiate any inquiry or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofproposal, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regardingwith, or furnish knowingly provide any information to, any corporation, partnership, agent, attorney, financial advisor, or other Person (other than the Company, an affiliate of the Company or an officer, employee or other authorized representative of the Company or such affiliate, or counsel for the Company or its directors and financial advisor, solely for use in connection with the transactions contemplated hereby) relating to any other Person Acquisition Proposal; (ii) knowingly furnish any information to any Person in connection with, or participate in any negotiations with respect to, or otherwise cooperate knowingly take any other action designed to facilitate, any Acquisition Proposal; or (iii) participate in any way with, or assist or participate in, facilitate or encourage, discussions regarding any effort or attempt by any other Person to do or seek any of the foregoingAcquisition Proposal; provided, however, that the Company may furnish information RLBI make such disclosures that are necessary to (subjectcomply with its disclosure obligations under federal or state law, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar and if at any time prior to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date approval of this Agreement if by the shareholders of RLBI, the RLBI Board reasonably determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take provide such action is reasonably determined information or to constitute participate in such negotiations or discussions would likely be inconsistent with its fiduciary duties to the shareholders of RLBI under applicable law, RLBI may, in response to a proposal that was not solicited by it and that did not otherwise result from a breach of this Section 6.06(a), and that has been determined by the fiduciary duties RLBI Board to be a Superior Proposal, subject to RLBI giving the Company at least two (2) Business Days' written notice of the Board under applicable Lawits intention to do so, (iix) after consultation furnish information with and receipt respect to RLBI to any Person pursuant to a customary confidentiality agreement provided that a copy of advice from a recognized investment banking firm, that all such proposal information is more favorable delivered simultaneously to the Company's shareholders from , and (y) participate in negotiations regarding such proposal. RLBI shall as promptly as practicable notify the Company in writing of any inquiry, request for information or any proposal in connection with a financial point of view than Acquisition Proposal, the Transactions (including any adjustment to the material terms and conditions of such request or proposal (including a copy of any written inquiry or proposal, or a written summary of any verbal inquiry or proposal, as the case may be) and the identity of the Person making such request or proposal. RLBI will keep the Company reasonably informed of the status and material details (including amendments or proposed amendments) of such request or proposal on a current basis, and will respond promptly in writing to any reasonable inquiry by Purchaser in response to such Acquisition Proposal)the Company concerning the foregoing. RLBI shall immediately cease and terminate any existing solicitation, (iii) that sufficient commitments have been obtained initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore by RLBI or its representatives with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theforegoing.

Acquisition Proposals. Neither the Company nor (a) Except as permitted by this Agreement, DFBS shall not, and shall not authorize or permit any of its subsidiaries shallSubsidiaries or any of its or its Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by DFBS or any of its Subsidiaries to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries, discussions or the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would that constitutes or could reasonably be expected to impedelead to an Acquisition Proposal, interfere with(ii) participate in any discussions or negotiations, prevent or materially delay otherwise communicate in any way with any person (other than FCCO), regarding an Acquisition Proposal, or (iii) enter into or consummate any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or which would or could reasonably be expected to materially dilute transactions contemplated hereby. Without limiting the benefits to Purchaser foregoing, it is understood that any violation of the Transactions restrictions set forth in the preceding sentence by any officer, director or employee of DFBS or of any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by DFBS or any of its Subsidiaries shall be deemed to be a breach of this SECTION 5.1 by DFBS. Notwithstanding the foregoing, DFBS may, in response to a Superior Proposal that has not been withdrawn and that did not otherwise result from a breach of this SECTION 5.1, (any communication x) furnish non-public information with respect to DFBS to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish person who made such Superior Proposal pursuant to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar no more favorable to such person than the confidentiality agreement referred to in Section 4.02(b))between FCCO and DFBS dated December 16, 2003 and negotiate or otherwise engage (y) participate in discussions withor negotiations with such person regarding such Superior Proposal, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date if and so long as DFBS's Board of this Agreement if the Board reasonably Directors determines in good faith by a majority vote (i) faith, after consultation with and receipt based upon the advice of advice from its outside legal counsel, that failing to take such action is reasonably determined to would constitute a breach of the its fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thelaw.

Acquisition Proposals. Neither the (a) The Company nor any of shall not, and shall cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of any proposal knowingly facilitate inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "any Acquisition Proposal", (ii) engage or participate in any negotiations regarding, with any person concerning any Acquisition Proposal or furnish to (iii) provide any other Person any confidential or nonpublic information with respect or data to, or otherwise cooperate have or participate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a person relating to any Acquisition Proposal; provided, that, prior to the approval of this Agreement and the transactions contemplated hereby (including the Merger) by the shareholders of the Company by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged Proposal, after the date of this Agreement if the and its Board reasonably determines of Directors concludes in good faith by a majority vote (i) after consultation with and receipt receiving the advice of advice from its outside legal counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failing failure to take such action is actions would more likely than not result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have provided such information to Purchaser and entered into a confidentiality agreement with such third party on material terms no less favorable to it than the Confidentiality Agreement. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Purchaser with respect to any Acquisition Proposal. The Company will promptly (and in any event within twenty-four (24) hours) advise Purchaser following receipt of any Acquisition Proposal or any inquiry which could reasonably determined be expected to constitute a breach lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), and will promptly (and in any event within twenty-four (24) hours) advise Purchaser of any related developments, discussions and negotiations, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to Directors of the Company's shareholders from , to enforce any existing confidentiality, standstill or similar agreements to which it or any of its Subsidiaries is a financial point party relating to an Acquisition Proposal in accordance with its terms. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the date hereof, request and confirm the return or destruction of view any confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless and until this Agreement shall have been duly terminated in accordance with its terms, the Transactions Company shall not, and shall cause its Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (including other than a confidentiality agreement referred to and entered into in accordance with Section 6.12(a)) relating to any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. (a) Neither the Company Sterling nor any Umpqua shall, and each of Sterling and Umpqua shall cause each of its subsidiaries shallSubsidiaries and controlled affiliates and shall use its reasonable best efforts to cause each of its and their respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a "Representative") not to, directly or indirectly, through any officer, director, agent or otherwise, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the making knowingly facilitate (including by way of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets offurnishing information), or take any other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock or equity interest in, the Company interests (including by way of a tender offer) or similar transactions involving such party or any of its subsidiaries or any recapitalizationSubsidiaries that, business combinationif consummated, consolidation, merger, liquidation, dissolution or similar transaction with the Company or would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or (iii) enter into any agreement regarding any Alternative Transaction or Acquisition Proposal; provided, however, that, prior to receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Umpqua Vote, in the case of Umpqua, in the event that either Sterling or Umpqua shall receive an Acquisition Proposal that was not solicited by it and did not otherwise result from a breach of this Section 6.11 and which the Board of Directors of the applicable party determines, in its subsidiaries or any other transaction good faith judgment, after receiving the consummation advice of which would outside counsel, constitutes, or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate result in, facilitate or encouragea Superior Proposal, any effort or attempt by any other Person to do or seek any of the foregoing; providedif and only if, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably of Directors of such party determines in its good faith by a majority vote (i) judgment, after consultation with and receipt receiving the advice of advice from its outside legal counsel, that failing failure to take such action is reasonably determined to constitute a breach of the would be inconsistent with its fiduciary duties of the Board under applicable Law, such party and its Representatives, as applicable, may (iiA) after consultation furnish information with respect to it and receipt of advice from a recognized investment banking firm, that such proposal is more favorable its Subsidiaries to the Company's shareholders from party making such Acquisition Proposal and its Representatives and financing sources pursuant to a financial point of view customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the Transactions (including any adjustment terms contained in the Confidentiality Agreement, provided that a copy of all such written information is substantially simultaneously provided to the terms other party to this Agreement (if not previously provided), and conditions proposed by Purchaser (B) participate in response to discussions and negotiations regarding such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) From and after the Company nor date of this Agreement, MFC shall, and shall cause all MFC Subsidiaries to, and each shall use its reasonable best efforts to cause any of its subsidiaries shalland their Representatives to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Closing Date or the termination hereof and except as permitted by the following provisions, MFC shall not, and shall cause the MFC Subsidiaries and each of its and their respective Representatives not to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or knowingly encourage the making of an Acquisition Proposal, (ii) except in accordance with Section 10.1(d) hereof, enter into any Contract or letter of intent with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 8.8(a)), (iii) other than informing Persons of the provisions contained in this Section 8.8, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information with respect to MFC or MB in connection with any inquiries or the making of any proposal that constitutes, or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not is reasonably likely to interfere with lead to, any Acquisition Proposal; provided, however, that, at any time prior to the consummation Effective Time, in response to an unsolicited Acquisition Proposal that the Board of Directors of MFC determines in good faith is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was made after the Transactionsdate hereof and did not result from a material breach of this Section 8.8, MFC may (i) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication furnish information with respect to MFC and its Subsidiaries to the foregoing being an "Person making such Acquisition Proposal"Proposal (and its Representatives) or participate in any negotiations regarding, or furnish pursuant to any other a customary confidentiality agreement not less restrictive of such Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of than the foregoingConfidentiality Agreement; provided, however, that the Company may furnish all such information to (subjecthas previously been, or is, in each casesubstance, provided to receipt by the Company of a confidentiality agreement on terms substantially similar KBI contemporaneously as it is provided to the agreement referred to in Section 4.02(b))such Person, and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation participate in discussions or negotiations with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to Person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to and its officers, directors, employees, Representatives and agents regarding such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither The Company agrees that it shall not, and shall cause its Subsidiaries and its and its Subsidiaries' representatives not to, solicit or encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any person relating to, any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company nor or any of its subsidiaries shall, directly Subsidiaries or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire in any Person relating to any acquisition manner a substantial equity interest in, or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any a substantial portion of the assets or deposits of, or any equity interest in, the Company or any of its subsidiaries or any recapitalizationSubsidiaries, business combination, consolidation, merger, liquidation, dissolution or similar transaction with other than the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions transactions contemplated by this Agreement (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing, an "ACQUISITION PROPOSAL"); provided, however, PROVIDED that nothing contained in this Agreement shall prevent the Company may furnish information Board from (i) making any disclosure to (subjectits stockholders if, in each case, to receipt by the good faith judgment of the Company Board, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) before the date of the Company Meeting, providing (or authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, any person who has made a confidentiality agreement on terms substantially similar bona fide written Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.06; or (iii) recommending such an Acquisition Proposal to its stockholders if and only to the agreement extent that, in the case of actions referred to in Section 4.02(b)clause (ii) or (iii), and negotiate or otherwise engage in discussions with, any party who delivers a written (x) such Acquisition Proposal which was not solicited or encouraged is a Superior Proposal, (y) the Company Board, after having consulted with and considered the date advice of this Agreement if outside counsel to the Board reasonably Company Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation is required in order to discharge the directors' fiduciary duties to the Company and its stockholders in accordance with the DGCL and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means any Acquisition Proposal by a majority vote (i) third party on terms that the Company Board determines in its good faith judgment, after consultation with and receipt receiving the advice of advice from its outside legal counselfinancial advisors, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is be materially more favorable to the Company's shareholders from a financial point of view to the Company and its stockholders than the Transactions Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any adjustment such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving the Acquiror at least two business days to respond to such third-party Acquisition Proposal once the Board has notified the Acquiror that in the absence of any further action by the Acquiror it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by the Acquiror. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than the Acquiror, with respect to any of the foregoing. The Company shall promptly (within one business day) advise the Acquiror following the receipt by it of any Acquisition Proposal and the material terms and conditions proposed by Purchaser in response to thereof (including the identity of the person making such Acquisition Proposal), and advise the Acquiror of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal promptly upon the occurrence thereof. The Company agrees that neither it nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of or release any of its rights under any confidentiality or standstill agreement to which it is a party. The Company shall 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. Nothing contained in this Section 6.06 or any other provision of this Agreement will prohibit the Company or the Company Board reasonably expects a transaction pursuant to such from notifying any third party that contacts the Company on an unsolicited basis after the date hereof concerning an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the Company's obligations under this Section 6.06.

Acquisition Proposals. Neither (a) From and after the Company nor date of this Agreement, FFKY shall, and shall cause all FFKY Subsidiaries to, and each shall use its reasonable best efforts to cause any of its subsidiaries shalland their Representatives to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. From and after the date of this Agreement until the earlier of the Closing Date or the termination hereof and except as permitted by the following provisions, FFKY shall not, and shall cause the FFKY Subsidiaries and each of its and their respective Representatives not to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or knowingly encourage the making of an Acquisition Proposal, (ii) except in accordance with Section 10.1(d) hereof, enter into any Contract or letter of intent with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 8.8(a)), (iii) other than informing Persons of the provisions contained in this Section 8.8, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information with respect to FFKY or FFB in connection with any inquiries or the making of any proposal that constitutes, or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not is reasonably likely to interfere with lead to, any Acquisition Proposal; provided, however, that, at any time prior to the consummation Effective Time, in response to an unsolicited Acquisition Proposal that the Board of Directors of FFKY determines in good faith is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was made after the Transactionsdate hereof and did not result from a material breach of this Section 8.8, FFKY may (i) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication furnish information with respect to FFKY and its Subsidiaries to the foregoing being an "Person making such Acquisition Proposal"Proposal (and its Representatives) or participate in any negotiations regarding, or furnish pursuant to any other a customary confidentiality agreement not less restrictive of such Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of than the foregoingConfidentiality Agreement; provided, however, that the Company may furnish all such information to (subjecthas previously been, or is, in each casesubstance, provided to receipt by the Company of a confidentiality agreement on terms substantially similar CBIN contemporaneously as it is provided to the agreement referred to in Section 4.02(b))such Person, and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation participate in discussions or negotiations with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to Person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to and its officers, directors, employees, Representatives and agents regarding such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither the (1) The Company nor any of will not, and will cause its subsidiaries shallofficers, directly or indirectlydirectors, through any officeragents, directoradvisors and Affiliates not to, agent or otherwise, solicit, initiate solicit or encourage the making of any proposal inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information proposals with respect to, or otherwise cooperate engage in any way withnegotiations concerning, or assist provide any confidential information to, or participate in, facilitate or encourage, have any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party person relating to, any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) providing (or authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, any person who delivers has made a bona fide written Acquisition Proposal received after the date hereof which was did not solicited result from a breach of this Section 6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), if and only to the extent that, (x) in the case of actions referred to in clause (ii), the Company’s Board of Directors determines in good faith that such Acquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the case of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company’s Board of Directors, after having consulted with and considered the advice of outside counsel to such Board, determines in good faith that providing such information or encouraged engaging in such negotiations or discussions, or making such recommendation, is required in order to discharge the directors’ fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a “Superior Proposal” means any Acquisition Proposal by a third party on terms which the Company’s Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving Parent at least five Business Days to respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counselany parties other than Parent, that failing with respect to take such action is reasonably determined to constitute a breach any of the fiduciary duties foregoing. The Company shall promptly (within 24 hours) advise Parent following the receipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to person making such Acquisition Proposal), and advise Parent of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal that promptly upon the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theoccurrence thereof.

Acquisition Proposals. Neither the (a) The Company nor any of will not, and will cause its subsidiaries shallofficers, directly or indirectlydirectors, through any officeragents, directoradvisors and Affiliates not to, agent or otherwise, solicit, initiate solicit or encourage the making of any proposal inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information proposals with respect to, or otherwise cooperate engage in any way withnegotiations concerning, or assist provide any confidential information to, or participate in, facilitate or encourage, have any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party person relating to, any Acquisition Proposal, other than the transactions contemplated by this Agreement; provided, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) providing (or authorizing the provision of) information to, or engaging in (or authorizing) such discussions or negotiations with, any person who delivers has made a bona fide written Acquisition Proposal received after the date hereof which was did not solicited result from a breach of this Section 6.07; (iii) recommending such an Acquisition Proposal to its stockholders (and in connection therewith withdrawing its favorable recommendation to stockholders of this Agreement), if and only to the extent that, (x) in the case of actions referred to in clause (ii), the Company's Board of Directors determines in -46- 51 good faith that such Acquisition Proposal has a reasonable probability of resulting in a Superior Proposal or, in the case of actions referred to in clause (iii), is a Superior Proposal, (y) in the case of actions referred to in each of clauses (ii) and (iii), the Company's Board of Directors, after having consulted with and considered the advice of outside counsel to such Board, determines in good faith that providing such information or encouraged engaging in such negotiations or discussions, or making such recommendation, is required in order to discharge the directors' fiduciary duties in accordance with Delaware law and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement (which shall not preclude the making of any Acquisition Proposal); or (iv) withdrawing its favorable recommendation to stockholders of this Agreement or the Merger if, in the good faith judgment of its Board of Directors, such action would be required in order to discharge its obligations under applicable law. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a third party on terms which the Company's Board of Directors determines in its good faith judgment, after consultation with its financial advisors, to be more favorable to stockholders than the Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving Parent at least five Business Days to respond to such third-party Superior Proposal once the Board has notified Parent that in the absence of any further action by Parent it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by Parent. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counselany parties other than Parent, that failing with respect to take such action is reasonably determined to constitute a breach any of the fiduciary duties foregoing. The Company shall promptly (within 24 hours) advise Parent following the receipt by it of any Acquisition Proposal and the material terms thereof (including the identity of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to person making such Acquisition Proposal), and advise Parent of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal that promptly upon the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theoccurrence thereof.

Acquisition Proposals. Neither the Company nor Except as contemplated hereby, each of KNOGO and VIDEO agree not to (and shall use reasonable efforts to cause its officers, directors and employees and any of its subsidiaries shallinvestment banker, attorney, accountant, or other agent retained by it not to) solicit, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire all or any Person significant part of its business and properties or its capital stock, whether by merger, purchase of assets, tender offer or otherwise (an "ACQUISITION PROPOSAL" and, any such transaction, an "ACQUISITION TRANSACTION) or provide any non-public information concerning the respective company to any third party in connection with an Acquisition Proposal. Notwithstanding the foregoing, KNOGO and VIDEO may furnish information or cause information to be furnished to, and may participate in discussions and negotiations directly or through their respective representatives and enter into an agreement relating to an Acquisition Proposal with, any acquisition third party (including parties with whom KNOGO and VIDEO or purchase of all their respective representatives have had discussions on any basis on or (other than prior to the date hereof) who makes an unsolicited proposal or offer to it, if the KNOGO Board or VIDEO Board, as the case may be, determines in good faith, after consultation with outside counsel, that the ordinary course of business and not likely failure to interfere with the consummation of the Transactions) any portion of the assets of, consider such proposal or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or offer could reasonably be expected deemed to impedecause its directors to breach their fiduciary duties under applicable law. In addition, interfere withnothing contained in this Agreement shall prohibit KNOGO or VIDEO and their respective directors from (a) issuing a press release or otherwise publicly disclosing the terms of any Acquisition Proposal, prevent or materially delay (b) taking and disclosing to its stockholders any position, and making related filings with the Merger or which would or could reasonably be expected to materially dilute SEC, as required by Rules 14e-2 and 14d-9 under the benefits to Purchaser of the Transactions (any communication Exchange Act with respect to any tender offer or (c) taking any action and making any disclosure to its stockholders which the foregoing being an "Acquisition Proposal") KNOGO Board or participate in any negotiations regardingVIDEO Board, or furnish to any other Person any information with respect toas the case may be, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing would likely be required to take such action is reasonably determined be taken or made under applicable law (including, without limitation, laws relating to constitute a breach of the fiduciary duties of directors). In the event KNOGO or VIDEO receives an Acquisition Proposal, it shall promptly inform the other party as to the receipt of such Acquisition Proposal, unless the KNOGO Board under applicable Lawor VIDEO Board, (ii) as the case may be, determines, after consultation with and receipt of advice from a recognized investment banking firmoutside counsel, that giving such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that notice could reasonably be expected deemed to prevent consummation. Thecause its directors to breach their fiduciary duties under applicable law.

Acquisition Proposals. Neither The Company agrees that it shall not, and shall cause its Subsidiaries and its and its Subsidiaries' representatives not to, solicit or encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any person relating to, any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company nor or any of its subsidiaries shall, directly Subsidiaries or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire in any Person relating to any acquisition manner a substantial equity interest in, or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any a substantial portion of the assets or deposits of, or any equity interest in, the Company or any of its subsidiaries or any recapitalizationSubsidiaries, business combination, consolidation, merger, liquidation, dissolution or similar transaction with other than the Company or transactions contemplated by this Agreement (any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impedeforegoing, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"); provided that nothing contained in this Agreement shall prevent the Company Board from (i) making any disclosure to its shareholders if, in the good faith judgment of the Company Board, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) before the date of the Company Meeting, providing (or participate in any negotiations regarding, or furnish to any other Person any authorizing the provision of) information with respect to, or otherwise cooperate engaging in any way (or authorizing) such discussions or negotiations with, any person who has made a bona fide written Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.06; or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (iii) recommending such an Acquisition Proposal to do or seek any of its shareholders if and only to the foregoing; provided, however, that the Company may furnish information to (subjectextent that, in each case, to receipt by the Company case of a confidentiality agreement on terms substantially similar to the agreement actions referred to in Section 4.02(b)clause (ii) or (iii), and negotiate or otherwise engage in discussions with, any party who delivers a written (x) such Acquisition Proposal which was not solicited or encouraged is a Superior Proposal, (y) the Company Board, after having consulted with and considered the date advice of this Agreement if outside counsel to the Board reasonably Company Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation is required in order to discharge the directors' fiduciary duties in accordance with the GBCC and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a majority vote third party on terms that the Company Board determines in its good faith judgment, after receiving the advice of its financial advisors (i) after consultation with and receipt the substance of whose advice from its outside legal counselshall be communicated to the Acquiror), that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is be materially more favorable to the Company's shareholders from a financial point of view to its shareholders than the Transactions Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any adjustment such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving the Acquiror at least five business days to respond to such third-party Acquisition Proposal once the Board has notified the Acquiror that in the absence of any further action by the Acquiror it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by the Acquiror. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than the Acquiror, with respect to any of the foregoing. The Company shall promptly (within 24 hours) advise the Acquiror following the receipt by it of any Acquisition Proposal and the material terms and conditions proposed by Purchaser in response to thereof (including the identity of the person making such Acquisition Proposal), and advise the Acquiror of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal promptly upon the occurrence thereof. Nothing contained in this Section 6.06 or any other provision of this Agreement will prohibit the Company or the Company Board from notifying any third party that contacts the Board reasonably expects a transaction pursuant to such Company on an unsolicited basis after the date hereof concerning an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the Company's obligations under this Section 6.06.

Acquisition Proposals. Neither From and after the date hereof, the Company nor any of its subsidiaries shallwill not, directly or indirectly, through and will instruct its officers, directors, employees, agents or advisors or other representatives or consultants not to, directly or indirectly, solicit or initiate any officer, director, agent proposals or otherwise, solicit, initiate or encourage the making of any proposal or offer offers from any Person person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion a material amount of the assets of, or any equity interest insecurities of, or any merger, consolidation or business combination with, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect such proposal or offer being referred to the foregoing being herein as an "Acquisition Proposal") ), and shall immediately cease and cause to be terminated any existing activities, discussions or participate in negotiations with any negotiations regarding, or furnish persons conducted heretofore with respect to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoingsuch Acquisition Proposal; providedPROVIDED, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise may engage in discussions withor negotiations with any person if, any party who delivers a following the receipt of an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote from any such person (i) counsel advises the Company's directors that failure to furnish such information or engage in such discussions or negotiations could involve the Company's directors in a breach of their fiduciary duties and (ii) the Company's directors believe, in good faith, after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firmCompany's financial advisors, that such person may make a bona fide proposal is for a transaction more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment transactions contemplated by the Merger; PROVIDED FURTHER, however, that nothing contained in this Section 4.2 shall prohibit the Company or its Board of Directors from making such disclosure to the terms and conditions proposed by Purchaser Company's shareholders which, in response to such Acquisition Proposal)the judgment of the Board of Directors with the advice of counsel, (iii) that sufficient commitments have been obtained with respect to such may be required under applicable law. The Company will promptly notify Parent of the receipt of any Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not and, subject to any regulatory approvals or other legalthe fiduciary duties of the Company's board of directors, financial or other restrictions that could reasonably be expected to prevent consummation. Thekeep Parent informed of the status thereof.

Acquisition Proposals. Neither (a) During the Pre-Closing Period, the Company will not, nor will the Company authorize or permit any officer, director, employee, consultant or contractor of its subsidiaries shallor any investment banker, attorney, accountant or other advisor or representative of, the Company to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage the making submission of any proposal or offer from any Person relating to any acquisition or purchase of all for an Acquisition Transaction or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactionsii) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any discussions or negotiations regarding, or furnish to any other Person person any information with in respect of, or take any other action to facilitate, any Acquisition Transaction or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Transaction. Notwithstanding the foregoing, in the event that the Company receives an unsolicited proposal for an Acquisition Transaction, prior to the adoption and approval of this Agreement by the Required Company Stockholder Vote, this Section 4.5 shall not prohibit the Company from furnishing information regarding the Company to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions with, any party who delivers Person in response to a written bona fide proposal for an Acquisition Transaction that could reasonably be expected to lead to a Superior Proposal which was that is submitted to the Company by such Person (and not solicited or encouraged after withdrawn) if (A) neither the date Company nor any representative of the Company shall have violated any of the restrictions set forth in this Agreement if Section 4.5, in connection with such proposal, (B) the Board reasonably determines board of directors of the Company concludes in good faith by a majority vote (i) faith, after consultation with and receipt having taken into account the advice of advice from its outside legal counsel, that failing failure to take such action is reasonably determined to constitute a breach of the would be inconsistent with fiduciary duties of the Board under applicable Lawboard of directors of the Company to the Company Stockholders, (iiC) after consultation with at least five business days 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 and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from a financial point such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of view than all nonpublic written and oral information furnished to such Person by or on behalf of the Transactions Company, and (including D) at least five business days prior to furnishing any adjustment such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the terms extent such nonpublic information has not been previously furnished by the Company to Parent). Immediately after the execution and conditions proposed delivery of this Agreement, the Company will, and will use its commercially reasonable efforts to cause its affiliates, and its respective officers, directors, employees, consultants, contractors, investment bankers, attorneys, accountants and other agents and representatives to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore in respect of any possible Acquisition Transaction and shall immediately inform Parent of the receipt by Purchaser the Company of any subsequent proposal for an Acquisition Transaction. The Company shall take all necessary steps to promptly inform the individuals or entities referred to in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationfirst sentence of this Section 4.5 of the obligations undertaken in this Section 4.5. The"

Acquisition Proposals. Neither the (a) The Company nor any of and its subsidiaries shallSubsidiaries will not, directly or indirectlyindirectly through their respective officers, through any officerdirectors, directoremployees, agent representatives and agents, (i) initiate, facilitate, encourage or otherwise, solicit, initiate or encourage solicit the making of any proposal or offer from any Person relating to any acquisition or purchase of all Acquisition Proposal (as hereinafter defined) or (other than ii) except as permitted below, engage in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, negotiations or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere discussions with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any non-public information with respect to, or otherwise cooperate any third party relating to an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person time prior to do or seek any the approval of the foregoing; provided, however, that Merger by the Company's stockholders the Company and the Board (i) may participate in negotiations or discussions (including, as a part thereof, making any counterproposal) with or furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any third party who that delivers a written Acquisition Proposal to the Company which was not solicited or encouraged after the date of this Agreement hereof if the Board reasonably determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take participate in such action is discussions or negotiations or to furnish such information could reasonably determined be expected to constitute a breach of the Board's fiduciary duties of the Board under applicable Law, law and (ii) after consultation with without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall be permitted to (x) take and receipt of advice from a recognized investment banking firm, that such proposal is more favorable disclose to the Company's shareholders from stockholders a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained position with respect to the Merger or another Acquisition Proposal, or amend or withdraw such Acquisition Proposal position, pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its outside counsel, that the Board reasonably expects a transaction pursuant failure to take such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that action could reasonably be expected to prevent consummationconstitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. TheThe Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation ("AES") conducted heretofore with respect to an Acquisition Proposal.

Acquisition Proposals. Neither the Company nor any South agrees that it will not, and will cause each of its subsidiaries shallSubsidiaries and controlled affiliates not to, and will use its reasonable best efforts to cause each of its respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a “Representative”) not to, directly or indirectly, through any officer, director, agent or otherwise, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the making knowingly facilitate (including by way of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets offurnishing information), or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or take any other transaction the consummation of which would action designed to facilitate, any inquiries, requests for nonpublic information, offers or proposals that contemplate or otherwise relate to or could reasonably be expected to impedelead to any Alternative Transaction (any of the foregoing being referred to herein as an “Acquisition Proposal”), interfere with(ii) participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or (iii) furnish any information regarding itself or any of its Subsidiaries to any person in connection with or in response to any Acquisition Proposal. Notwithstanding the preceding sentence, prevent prior to receipt of the Requisite South Vote, in the event that South receives an Acquisition Proposal that was not solicited by it and did not otherwise result from a breach of or materially delay any action inconsistent with this Section 6.11, and that the Merger Board of Directors of South determines, in its good faith judgment, after receiving the advice of outside counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate result in, facilitate or encouragea Superior Proposal (and such proposal has not been withdrawn), any effort or attempt by any other Person if and only if, the Board of Directors of South determines, in its good faith judgment, after receiving the advice of outside counsel and a financial advisor of nationally recognized reputation, that failure to do or seek take any of the foregoing; provided, however, that actions described in the Company may furnish information to following clauses (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), A) and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (iB) after consultation would be inconsistent with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, South and its Representatives may (iiA) after consultation furnish information with respect to it and receipt of advice from a recognized investment banking firm, that such proposal is more favorable its Subsidiaries to the Company's shareholders from party making such Acquisition Proposal and its Representatives and financing sources pursuant to a financial point of view customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the Transactions terms contained in the Confidentiality Agreement, provided that a copy of all such written information is provided simultaneously to North (including any adjustment to the terms if not previously provided), and conditions proposed by Purchaser (B) participate in response to discussions and negotiations regarding such Acquisition Proposal). Without limiting the foregoing, (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that any violation of the Board reasonably expects restrictions contained in this Section 6.11 by any Subsidiary or Representative of South, shall be deemed a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thebreach of this Section 6.11 by South.

Acquisition Proposals. Neither the Company nor (a) Except as permitted by this Agreement, DFBS shall not, and shall not authorize or permit any of its subsidiaries shallSubsidiaries or any of its or its Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by DFBS or any of its Subsidiaries to, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries, discussions or the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would that constitutes or could reasonably be expected to impedelead to an Acquisition Proposal, interfere with(ii) participate in any discussions or negotiations, prevent or materially delay otherwise communicate in any way with any person (other than FCCO), regarding an Acquisition Proposal, or (iii) enter into or consummate any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or which would or could reasonably be expected to materially dilute transactions contemplated hereby. Without limiting the benefits to Purchaser foregoing, it is understood that any violation of the Transactions restrictions set forth in the preceding sentence by any officer, director or employee of DFBS or of any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by DFBS or any of its Subsidiaries shall be deemed to be a breach of this Section 5.1 by DFBS. Notwithstanding the foregoing, DFBS may, in response to a Superior Proposal that has not been withdrawn and that did not otherwise result from a breach of this Section 5.1, (any communication x) furnish non-public information with respect to DFBS to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish person who made such Superior Proposal pursuant to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar no more favorable to such person than the confidentiality agreement referred to in Section 4.02(b))between FCCO and DFBS dated December 16, 2003 and negotiate or otherwise engage (y) participate in discussions withor negotiations with such person regarding such Superior Proposal, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date if and so long as DFBS's Board of this Agreement if the Board reasonably Directors determines in good faith by a majority vote (i) faith, after consultation with and receipt based upon the advice of advice from its outside legal counsel, that failing to take such action is reasonably determined to would constitute a breach of the its fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thelaw.

Acquisition Proposals. (a) Neither the Company Sterling nor any Umpqua shall, and each of Sterling and Umpqua shall cause each of its subsidiaries shallSubsidiaries and controlled affiliates and shall use its reasonable best efforts to cause each of its and their respective officers, directors, employees, agents and investment bankers, financial advisors, attorneys, accountants and other retained representatives or agents (each, a “Representative”) not to, directly or indirectly, through any officer, director, agent or otherwise, indirectly (i) solicit, initiate initiate, knowingly encourage or encourage the making knowingly facilitate (including by way of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets offurnishing information), or take any other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock or equity interest in, the Company interests (including by way of a tender offer) or similar transactions involving such party or any of its subsidiaries or any recapitalizationSubsidiaries that, business combinationif consummated, consolidation, merger, liquidation, dissolution or similar transaction with the Company or would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or (iii) enter into any agreement regarding any Alternative Transaction or Acquisition Proposal; provided, however, that, prior to receipt of the Requisite Sterling Vote, in the case of Sterling, or the Requisite Umpqua Vote, in the case of Umpqua, in the event that either Sterling or Umpqua shall receive an Acquisition Proposal that was not solicited by it and did not otherwise result from a breach of this Section 6.11 and which the Board of Directors of the applicable party determines, in its subsidiaries or any other transaction good faith judgment, after receiving the consummation advice of which would outside counsel, constitutes, or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate result in, facilitate or encouragea Superior Proposal, any effort or attempt by any other Person to do or seek any of the foregoing; providedif and only if, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably of Directors of such party determines in its good faith by a majority vote (i) judgment, after consultation with and receipt receiving the advice of advice from its outside legal counsel, that failing failure to take such action is reasonably determined to constitute a breach of the would be inconsistent with its fiduciary duties of the Board under applicable Law, such party and its Representatives, as applicable, may (iiA) after consultation furnish information with respect to it and receipt of advice from a recognized investment banking firm, that such proposal is more favorable its Subsidiaries to the Company's shareholders from party making such Acquisition Proposal and its Representatives and financing sources pursuant to a financial point of view customary confidentiality agreement containing terms no less restrictive to the party making the Acquisition Proposal than the Transactions (including any adjustment terms contained in the Confidentiality Agreement, provided that a copy of all such written information is substantially simultaneously provided to the terms other party to this Agreement (if not previously provided), and conditions proposed by Purchaser (B) participate in response to discussions and negotiations regarding such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither the Company nor (a) Raindance agrees that it will not, and will cause its directors, officers, investment bankers, financial advisors, attorneys and accountants not to, and shall use its reasonable best efforts to cause its employees and other agents not to (it being understood that once Raindance discovers that any of its subsidiaries shallemployee or other agent has engaged in activity that violates this Section 4.9(a), directly it shall promptly cause such employee or indirectlyother agent to cease such activity), through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations concerning, (iii) provide any confidential or nonpublic information or data to, or provide access to its properties, books, records or personnel to, (iv) have or participate in any discussions with, or (v) exempt from the making restrictions contained in any Takeover Laws, including Section 203 of any proposal or offer from the DGCL, any Person relating to any acquisition Acquisition Proposal; provided that, notwithstanding anything to the contrary contained in this Section 4.9 or purchase of all or (other than elsewhere in this Agreement, in the ordinary course event Raindance receives an unsolicited bona fide Acquisition Proposal at any time prior to, but not after, the time this Agreement is adopted by the Raindance Stockholder Approval, and Raindance’s Board of business and not Directors concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to interfere with result in a Superior Proposal, Raindance may, and may permit its officers and Representatives to, furnish or cause to be furnished nonpublic information or data, provide access to its properties, books, records or personnel, exempt from the consummation restrictions contained in any Takeover Laws, including Section 203 of the Transactions) any portion of the assets of, or any equity interest inDGCL, the Company Person submitting such Acquisition Proposal, modify, waive, amend or release any of its subsidiaries or any recapitalizationstandstill, business combination, consolidation, merger, liquidation, dissolution confidentiality or similar transaction agreements, and participate in such negotiations or discussions to the extent that the Board of Directors of Raindance concludes in good faith (after consultation with the Company or outside counsel) that failure to take such actions would violate its fiduciary duties under applicable Law; provided further, that prior to providing any of its subsidiaries or any other transaction the consummation of which would or could reasonably nonpublic information permitted to be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect provided pursuant to the foregoing being an "Acquisition Proposal") or participate in any negotiations regardingproviso, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of it shall have entered into a confidentiality agreement with such third party on terms substantially similar no less favorable to it than the agreement referred terms currently in effect in the Confidentiality Agreement. Raindance will (i) immediately cease and cause to in Section 4.02(b))be terminated any activities, and negotiate discussions or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after negotiations conducted before the date of this Agreement if with any Persons other than West with respect to any Acquisition Proposal and request the Board reasonably determines in good faith by a majority vote (i) after consultation with prompt return or destruction of all confidential information previously furnished to such parties or their Representatives between January 1, 2005 and receipt the date of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, this Agreement and (ii) after consultation except as provided above in this Section 4.4(a), not modify, waive, amend or release any standstill, confidentiality or similar agreements entered into with and such parties. Raindance shall promptly (within two days) advise West following receipt of advice from a recognized investment banking firm, that such proposal is more favorable to any Acquisition Proposal and the Company's shareholders from a financial point of view than the Transactions substance thereof (including any adjustment to the terms and conditions proposed by Purchaser in response to identity of the Person making such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects and will keep West apprised of any related developments, discussions and negotiations on a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thecurrent basis.

Acquisition Proposals. Neither the (a) The Company nor any of and its subsidiaries shallSubsidiaries will not, directly or indirectlyindirectly through their respective officers, through any officerdirectors, directoremployees, agent representatives and agents, (i) initiate, facilitate, encourage or otherwise, solicit, initiate or encourage solicit the making of any proposal or offer from any Person relating to any acquisition or purchase of all Acquisition Proposal (as hereinafter defined) or (other than ii) except as permitted below, engage in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, negotiations or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere discussions with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any non-public information with respect to, or otherwise cooperate any third party relating to an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person time prior to do or seek any the approval of the foregoing; provided, however, that Merger by the Company's stockholders the Company and the Board (i) may participate in negotiations or discussions (including, as a part thereof, making any counterproposal) with or furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any third party who that delivers a written Acquisition Proposal to the Company which was not solicited or encouraged after the date of this Agreement hereof if the Board reasonably determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take participate in such action is discussions or negotiations or to furnish such information could reasonably determined be expected to constitute a breach of the Board's fiduciary duties of the Board under applicable Law, law and (ii) after consultation with without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall be permitted to (x) take and receipt of advice from a recognized investment banking firm, that such proposal is more favorable disclose to the Company's shareholders from stockholders a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained position with respect to the Merger 37 or another Acquisition Proposal, or amend or withdraw such Acquisition Proposal position, pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its outside counsel, that the Board reasonably expects a transaction pursuant failure to take such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that action could reasonably be expected to prevent consummationconstitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. TheThe Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation ("AES") conducted heretofore with respect to an Acquisition Proposal.

Acquisition Proposals. Neither The Company agrees that neither it nor any of its Subsidiaries nor any of their respective officers shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors, employees, agents and representatives not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any Acquisition Proposal. The Company further agrees that neither the Company nor any of its subsidiaries Subsidiaries nor any of their respective officers shall, and that it shall direct and use its reasonable best efforts to cause its and each such Subsidiary's directors employees, agents and representatives not to, directly or indirectly, through engage in any officernegotiations concerning, directoror provide any confidential information or data to, agent or otherwisehave any discussions with, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that nothing contained in this Agreement shall prevent the Company may furnish or the Company Board from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company Board receives from the Person so requesting such information an executed confidentiality agreement no less favorable to it than the Confidentiality Agreement entered into on November 26, 2002 by Parent and the Company; (subjectC) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement such case referred to in Section 4.02(b)clause (B), and negotiate (C) or otherwise engage in discussions with(D) above, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Company Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, ) that failing to take such action is reasonably determined likely to constitute a breach of the be required in order for its directors to comply with their respective fiduciary duties of the Board under applicable Law, law and (ii) in the case referred to in clause (D) above, the Company Board determines in good faith (after consultation with and receipt of advice from a recognized investment banking firm, its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and, if consummated, is reasonably likely to result in a transaction more favorable to the Company's shareholders stockholders from a financial point of view than the Transactions Merger. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposals. The Company agrees that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its representatives. The Company will promptly (within one business day) advise Parent following receipt of any Acquisition Proposal and the substance thereof (including any adjustment to the terms and conditions proposed by Purchaser in response to identity of the Person making such Acquisition Proposal), and will keep Parent apprised of any related developments, discussions and negotiations (iiiincluding the terms and conditions of the Acquisition Proposal) that sufficient commitments have been obtained on a current basis. The Company will use its reasonable best efforts to enforce (and will not waive any provisions of) any confidentiality or similar agreement entered into by it or on its behalf by Sandler X'Xxxxx & Partners, L.P. or otherwise relating to a potential Acquisition Proposal. Notwithstanding the requirements of the previous sentence, the Company may waive standstill provisions of such an agreement with respect to such a particular Acquisition Proposal if (i) the Company Board determines in good faith (after consultation with outside legal counsel) that the Board reasonably expects a transaction pursuant such action would be required in order for its directors to such Acquisition Proposal could be consummated comply with their respective fiduciary duties under applicable law and (ivii) the Company Board also determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal Proposal, if accepted, is not subject reasonably likely to any regulatory approvals or other be consummated, taking into account all legal, financial or other restrictions that could reasonably be expected and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to prevent consummation. Thethe Company's stockholders from a financial point of view than the Merger.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of any proposal knowingly facilitate inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "any Acquisition Proposal", (ii) engage or participate in any negotiations regardingwith any person concerning any Acquisition Proposal, or furnish (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any other Person Acquisition Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any information inquiries with respect to, or otherwise cooperate in any way withis considering making, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any an Acquisition Proposal of the foregoingexistence of the provisions of this Section 6.10(a); providedprovided that, however, that prior to the adoption of this Agreement by the stockholders of the Company may furnish information to (subjectby the Requisite Company Vote, in each case, to receipt by the event the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a receives an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the and its Board reasonably determines of Directors concludes in good faith (after receiving the advice of its outside counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have provided such information to Parent and entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal. The Company will promptly (within twenty-four (24) hours) advise Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), and will keep Parent reasonably apprised (and in any event within twenty-four (24) hours) of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall (A) withdraw and terminate access that was granted to any person (other than the parties to this Agreement and their respective affiliates and Representatives) to any “data room” (virtual or physical) that was established in connection with a transaction involving the Company and (B) use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (other than an Acceptable Confidentiality Agreement). As used in this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (ii) any tender offer (including a majority vote self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. As used in this Agreement, “Superior Proposal” shall mean a bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith to be more favorable to its stockholders than the Merger and the other transactions contemplated hereby, (i) after consultation with and receipt receiving the advice of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute financial advisors (who shall be a breach of the fiduciary duties of the Board under applicable Lawnationally recognized investment banking firm), (ii) after consultation taking into account the likelihood of consummation of such transaction on the terms set forth therein and (iii) after taking into account all legal (with the advice of outside counsel) financial (including the financing terms of any such proposal), regulatory and receipt other aspects of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms expense reimbursement provisions and conditions proposed by Purchaser to closing) and any other relevant factors permitted under applicable law; provided, that for purposes of the definition of “Superior Proposal,” the reference to “25%” in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such the definition of Acquisition Proposal that the Board reasonably expects shall be deemed to be references to “a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Themajority.”

Acquisition Proposals. Neither (a) Except as permitted by this Section 5.2, the Company nor any shall not, and shall cause its Subsidiaries and each of the officers, directors and employees of the Company and its subsidiaries shallSubsidiaries, and shall direct each of the consultants, agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) of the Company and its Subsidiaries not to, from and after the time of the Escrow Funding until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, (A) directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) the making of any inquiry, proposal or offer from any Person relating that constitutes, or would reasonably be expected to any acquisition or purchase of all or lead to, an Alternative Transaction Proposal (other than in the ordinary course respect of business and not likely to interfere with the consummation of the Transactionsan Exempted Alternative Transaction), (B) any portion of the assets of, engage in or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with or for the purpose of encouraging or facilitating, an Alternative Transaction Proposal (other than in respect of an Exempted Alternative Transaction), or (C) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL. As promptly as practicable following the time of the Escrow Funding, the Company shall, and shall cause the Company’s controlled Affiliates to, and shall direct its and their respective Representatives to, immediately cease any and all existing solicitation, discussions or negotiations with any Persons (or provision of any nonpublic information to any Persons) with respect to any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, an Alternative Transaction Proposal (other than with respect to any Company Takeover Proposal or otherwise cooperate an Exempted Alternative Transaction, which shall not be subject to this sentence). As promptly as practicable after the time of the Escrow Funding (and in any way withevent within two (2) Business Days following the date thereof), the Company shall (i) request in writing that each person that has theretofore executed a confidentiality agreement in connection with its consideration of a potential an Alternative Transaction Proposal promptly destroy or assist return to the Company all nonpublic information heretofore furnished by the Company or participate inany of its Representatives to such Person or any of its Representatives to the extent such destruction, facilitate return or encourageequivalent provisions are contained in such confidentiality agreements, and subject to the terms of such confidentiality agreements and (ii) terminate access to any effort physical or attempt electronic data rooms maintained by the Company or its Representatives relating to a possible Alternative Transaction Proposal by any other Person to do or seek any of the foregoingsuch Person; provided, however, that the Company may furnish information this sentence shall not apply to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b))any third party that has proposed, and negotiate at the time of the Escrow Funding continues to propose, a Company Takeover Proposal or otherwise engage in discussions withan Exempted Alternative Transaction. For the avoidance of doubt, any party who delivers a written Acquisition Proposal which was not solicited violation of the restrictions set forth in this Section 5.2 by any of the Company’s controlled Affiliates or encouraged after the date any of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute their respective Representatives shall be deemed a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to this Section 5.2 by the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) The Company shall, and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents (collectively, the “Restricted Parties”) to, immediately cease and cause to be terminated any discussions or negotiations with any parties (other than the parties to this Agreement and their Affiliates, representatives and advisors) that may be ongoing with respect to, or that would be reasonably expected by the parties to lead to, a Company nor any of Acquisition Proposal. The Company shall not and shall cause its subsidiaries shallSubsidiaries and its and their respective members, officers, employees and directors, and shall use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents not to, directly or indirectly, through (x) take any officer, director, agent or otherwise, solicit, initiate or encourage the making of action to enter into any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication agreement with respect to the foregoing being an "any Company Acquisition Proposal", or (y) or solicit, negotiate, furnish information to, accept, encourage, consider, participate in any negotiations regarding, or furnish to any other Person any information with respect discussions relating to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encouragepursue, any effort or attempt Company Acquisition Proposal, other than the transactions contemplated by any other Person to do or seek any of the foregoingthis Agreement; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar at any time prior to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged date that is 20 Business Days after the date of this Agreement if Agreement, in response to a bona fide written unsolicited Company Acquisition Proposal received after the date hereof that the Board reasonably of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes, or is reasonably expected to lead to, a Superior Proposal, and which Company Acquisition Proposal was not, directly or indirectly, the result of a breach by a majority vote any Restricted Party of this Section 9.13(a), the Company may, subject to compliance with Section 9.13(b) and Section 9.13(c), (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained furnish information with respect to the Company and its Subsidiaries to the Person making such Company Acquisition Proposal that the Board reasonably expects a transaction (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of such Acquisition Proposal could be consummated and Person than the Confidentiality Agreement (iv) provided that all such Acquisition Proposal information has previously been delivered or made available to Investor or is not subject delivered or made available to any regulatory approvals Investor prior to or other legalconcurrently with the time it is delivered or made available to such Person), financial or other restrictions that could reasonably be expected to prevent consummation. Theand

Acquisition Proposals. Neither From and after the execution of the Merger Agreement, until the earlier of the Acceptance Time and the termination of the Merger Agreement, (i) the Company nor any of shall, and shall cause its subsidiaries shalland the Company Representatives to, directly cease any solicitations, discussions or indirectly, through negotiations with any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating persons that may be ongoing with respect to any acquisition Competing Proposal (as defined below) and, unless the Company has previously made such a request, shall request each person that has been provided by or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation on behalf of the TransactionsCompany since January 1, 2013 any confidential information (A) any portion of the assets of, or any equity interest in, regarding the Company or any of its subsidiaries and (B) relating to a Competing Proposal to return or destroy all such confidential information and (ii) the Company shall not, and shall cause its subsidiaries and any recapitalizationCompany Representatives not to, business combination(A) initiate, consolidationsolicit or knowingly encourage or facilitate the submission of any Competing Proposal, merger, liquidation, dissolution or similar transaction with (B) furnish any non-public information regarding the Company or any of its subsidiaries to any third person in connection with or in response to a Competing Proposal or (C) participate in any other transaction discussions or negotiations with any third person with respect to any Competing Proposal. However, if at any time following the consummation date of which would the Merger Agreement and prior to the Acceptance Time, (i) the Company has received a bona fide written Competing Proposal (it being agreed that the Board may correspond in writing with any person making such a written Competing Proposal to request clarification of the terms and conditions thereof so as to determine whether such Competing Proposal constitutes or could reasonably be expected to impedelead to a Superior Proposal) from a person that did not result from a material breach of the previous paragraph regarding acquisition proposals (for purposes of this sentence only, interfere withthe definition of Company Representatives shall also include (x) any employee of the Company and (y) any advisor, prevent agent or materially delay representative of the Company acting on its behalf in connection with the Transactions), which Competing Proposal was made on or after the date of the Merger or which would Agreement and (ii) the Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to materially dilute lead to a Superior Proposal, then the benefits to Purchaser of the Transactions Company may (any communication A) furnish information with respect to the foregoing being an "Acquisition Proposal"Company and its subsidiaries to the person making such Competing Proposal and its representatives and (B) or participate in any discussions or negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoingperson making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company may furnish information to (subjectx) will not, in each casewill not permit its subsidiaries to, to receipt by and will not authorize the Company of a Representatives to, disclose any non-public information regarding the Company to such person without first entering into an acceptable confidentiality agreement on with such person, (y) will promptly advise Parent of the receipt of any Competing Proposal that constitutes or could reasonably be expected to lead to a Superior Proposal and (z) will as promptly as practicable (and in any event within 24 hours thereafter) provide to Parent the identity of such other person, an unredacted copy of such Competing Proposal if made in writing (or a written summary of the material terms substantially similar to the agreement referred to of such Competing Proposal if not made in Section 4.02(bwriting), any relevant proposed material transaction agreements, a copy of any financing commitments (including redacted fee letters), and negotiate any information concerning the Company and its subsidiaries provided or otherwise engage in discussions withmade available to such other person (or its representatives) that was not previously provided or made available to Parent (such information and documentation, the "Competing Proposal Information"). The Company shall continue to provide any Competing Proposal Information which is delivered to the Company, any party who delivers a written Acquisition Proposal which was not solicited subsidiary of the Company or encouraged after any Company Representative thereafter. Except as provided in the date of this Agreement if Merger Agreement, neither the Board reasonably nor any committee thereof shall (i) adopt, authorize, approve or recommend any Competing Proposal, (ii) withhold, modify or amend, in a manner adverse to Parent, the Company Recommendation or fail to include the Company Recommendation in the Schedule 14D-9 (any action set forth in the foregoing clauses (i) or (ii), a "Change of Company Recommendation") or (iii) allow the Company or any of its subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Competing Proposal (other than an acceptable confidentiality agreement) or requiring the Company to abandon, terminate or fail to consummate the Transactions. Notwithstanding anything to the contrary, at any time prior to the Acceptance Time, the Board may make a Change of Company Recommendation if: (i) (A) a Competing Proposal (that did not result from a material breach of the non-solicitation provisions of the Merger Agreement) is made to the Company by a third person and such Competing Proposal is not withdrawn and (B) the Board determines in good faith by a majority vote (i) faith, after consultation with its financial advisors and receipt of advice from its outside legal counsel, that failing such Competing Proposal constitutes a Superior Proposal; (ii) the Company provides Parent prior written notice of the Company's intention to make a Change of Company Recommendation (a "Notice of Change of Recommendation"), which notice shall identify the person making such Superior Proposal and include the Competing Proposal Information with respect to such Superior Proposal (it being agreed that neither the delivery of the Notice of Change of Recommendation by the Company nor the public announcement that the Board is considering making a Change of Company Recommendation under applicable law shall constitute a Change of Company Recommendation); (iii) the Company has negotiated, and has caused any applicable Company Representatives to negotiate, in good faith with Parent with respect to any changes to the terms of the Merger Agreement proposed by Parent for at least three days following receipt by Parent of such Notice of Change of Recommendation to assist Parent in proposing in writing a binding offer to effect revisions to the terms of the Merger Agreement, the Sponsor Commitment Agreement and the Guaranty such that it would cause any such Superior Proposal to no longer constitute a Superior Proposal; and (iv) taking into account any changes to the terms of the Merger Agreement proposed by Parent to the Company pursuant to clause (iii) above, the Board has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect; provided, that any material amendment to the terms of such Superior Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii) above) shall require a new Notice of Change of Recommendation and an additional two (2)-day period from the date of such notice during which the terms of clause (iii) above and this clause (iv) shall apply mutatis mutandis. Other than in connection with a Superior Proposal (which shall be subject to the provisions of the paragraph above, and not this paragraph), the Merger Agreement provides that nothing therein shall prohibit or restrict the Company's board of directors from withholding, modifying or amending, in a manner adverse to Parent, the Company Recommendation if the Company's board of directors determines in good faith, after consultation with the Company's outside legal counsel, that the failure of the Company's board of directors to effect a Change of Company Recommendation would reasonably be likely to be inconsistent with its fiduciary duties under applicable law; provided, that, to the extent practicable: (a) the Company shall give Parent advance notice of its intention to take such action is reasonably determined to constitute a breach (it being agreed that neither the delivery of such notice by the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, Company nor any public announcement that such proposal is more favorable to the Company's shareholders from board of directors is considering making a financial point Change of view than Company Recommendation under applicable Law shall constitute a Change of Company Recommendation); and (b) the Transactions Company shall give Parent at least three (including any adjustment 3) days following receipt by Parent of such notice to propose revisions to the terms of the Merger Agreement (or make another proposal) and conditions proposed by Purchaser shall negotiate in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained good faith with Parent with respect to such Acquisition Proposal proposed revisions or other proposal, if any, during such three (3)-day period. The Merger Agreement also provides that none of the foregoing shall prohibit the Company's board of directors from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company's board of directors determines in good faith, after consultation with outside counsel, that the Board reasonably expects failure to make such disclosure would be inconsistent with its fiduciary duties to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company's board of directors of a transaction pursuant "stop, look and listen" statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation). For purposes of this Offer to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. ThePurchase:

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof, the Company nor shall not and shall cause the subsidiaries not to, and shall use its best efforts to cause the officers, directors, employees and other agents and advisors (including, without limitation, any investment bank, attorney or accountant retained by the Company) of the Company and its subsidiaries shallnot to, directly or indirectly, through (i) take any officer, director, agent or otherwise, action to solicit, initiate or knowingly encourage the making of or otherwise knowingly facilitate any proposal Acquisition Proposal or offer any inquiries, proposals or offers from any Person (other than Parent or Merger Sub) relating to any acquisition Acquisition Proposal, (ii) grant any waiver or purchase release under any standstill or similar agreement with respect to any class of all or (other than in the ordinary course equity securities of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any subsidiary or (iii) furnish any information to or participate in any discussions or negotiations with any Person that has made or, to the knowledge of its subsidiaries or any recapitalizationthe Company, business combination, consolidation, merger, liquidation, dissolution or similar transaction with intends to make an Acquisition Proposal except to the Company or any of its subsidiaries or any other transaction extent the consummation of which would or foregoing could not reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected relevant to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that nothing contained in this Section 5.3(a) shall prohibit the Company may furnish information Board from taking any action described in clause (iii) above with respect to any Person that has made an unsolicited (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar as such term relates to the agreement referred to in Section 4.02(b)), period from and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date hereof) bona fide written Superior Proposal if, and only to the extent that, (A) the acceptance for payment of this Agreement if any Shares pursuant to the Board reasonably Offer shall not have occurred, (B) the Board, after consultation with outside legal counsel, determines in good faith that such action would, in the absence of the foregoing proscriptions, be required by a majority vote its fiduciary duties under the DGCL or its duties or obligations under other applicable law, and (iC) prior to taking such action, the Company receives from such Person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement. Within twenty-four (24) hours after consultation with and receipt of advice from its outside legal counsel, that failing determining to take such any action is reasonably determined to constitute a breach described in clause (iii) of the fiduciary duties preceding sentence, the Company shall notify Parent of any such Superior Proposal (including, without limitation, the material terms and conditions thereof and the identity of the Board under applicable LawPerson making it), (ii) after consultation with and receipt shall thereafter inform Parent on a prompt basis of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment material changes to the terms and conditions proposed by Purchaser in response of such Superior Proposal and, upon the reasonable request of Parent, any material change to the status of any discussion with such Acquisition Proposal)third party. The Company shall, (iii) and shall cause its subsidiaries and the officers, directors, employees and other agents and advisors of the Company and its subsidiaries to, immediately cease and cause to be terminated all discussions and negotiations, if any, that sufficient commitments have been obtained taken place prior to the date hereof with any parties with respect to such any Acquisition Proposal that Proposal. Nothing contained in this Agreement shall prevent the Board reasonably expects of Directors of the Company from complying with Rules 14d-9 or 14e-2 under the Exchange Act with respect to any Acquisition Proposal, including taking and disclosing to the Company's stockholders its position with respect to a transaction tender or exchange offer by a third party pursuant to such Acquisition Proposal could Rules 14d-9 and 14e-2 under the Exchange Act or from referring a third party to this Section 5.3(a) or making a copy of this Section 5.3(a) available to any third party; provided, however, that in connection therewith the Company and the Board of Directors shall be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thethe provisions of Section 5.3(b).

Acquisition Proposals. Neither From and after the date hereof, the Company nor will not, and will not authorize or permit any of its subsidiaries shallofficers, directors, employees or agents (its "Representatives"), directly or indirectly, through any officer, director, agent or otherwise, to solicit, initiate or knowingly encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal which constitutes or offer may reasonably be expected to lead to an Acquisition Proposal (as defined below) from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets ofperson, or engage in any equity interest indiscussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however that notwithstanding any other provision hereof: (a) the Special Committee may at any time prior to the receipt of Company Stockholder Approval, engage in discussions or negotiations with a third party who (without any of its subsidiaries solicitation, initiation, encouragement, discussion or any recapitalizationnegotiation, business combinationdirectly or indirectly, consolidation, merger, liquidation, dissolution by or similar transaction with the Company or any of its subsidiaries Representatives after the date hereof) seeks to initiate such discussions or any negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the extent that, (i) (A) the third party has first made an Acquisition Proposal that is more favorable to the Company and its stockholders (other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser than COLA and holders of the Transactions Excluded Shares) than the transactions contemplated by this Agreement and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (any communication as determined in good faith in each case by the Special Committee after consultation with respect its financial advisors) and (B) the Special Committee shall conclude in good faith, after considering applicable provisions of state law, on the basis of oral or written advice of outside counsel (who may be the Company's regularly engaged independent counsel) that such action is necessary for the Special Committee to act in a manner consistent with its fiduciary duties under applicable law and (ii) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company (A) provides three Business Days' prior written notice to COLA to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, effect that the Company may furnish it is furnishing information to or entering into discussions or negotiations with such person or entity and (subject, in each case, to receipt by the Company of a B) receives from such person or entity an executed confidentiality agreement on terms substantially similar to in reasonably customary form; (b) the agreement Special Committee may withdraw or modify its recommendation referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers Article 6.3 following receipt of a written bona fide unsolicited Acquisition Proposal which was not solicited or encouraged after the date of this Agreement from a third party if the Board reasonably determines in good faith by a majority vote (i) the Special Committee, after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a Financial Advisor or another nationally recognized investment banking firm, determines in good faith in the exercise of its fiduciary obligations under applicable law that such proposal the Acquisition Proposal is more favorable to the Company and its stockholders (other than COLA and holders of the Excluded Shares) than the transactions contemplated by this Agreement and (ii) the Special Committee, after consultation with independent legal counsel (who may be the Company's shareholders from regularly engaged independent counsel), determines in good faith that such action is necessary for the Special Committee to comply with its fiduciary obligations under applicable law and/or (c) the Board of Directors, upon the recommendation of the Special Committee, may comply with Rule 14e-2 promulgated under the Exchange Act with regard to a financial point tender or exchange offer or take any other required action (including, without limitation, the making of view than such public disclosures as may be necessary or advisable under applicable securities laws) and provided further, that, in the Transactions event of an exercise of the Company's or its Board of Director's or the Special Committee's rights under clause (including a), (b) or (c) above, notwithstanding anything contained in this Agreement to the contrary, such action shall not constitute a breach of this Agreement by the Company but shall only give rise to the rights specified in Article 8.3 to the extent provided therein. As of the date of this Agreement, the Company shall immediately cease and terminate any adjustment existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by the Company with respect to the foregoing. The Company shall notify COLA orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions proposed by Purchaser in response of any such proposal and the identify of the person making it), within 24 hours of the receipt thereof, shall keep COLA informed of the status and details of any such inquiry, offer or proposal, and shall give COLA three Business Days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. As used herein, "Acquisition Proposal)" means any proposal or offer to acquire, directly or indirectly, in one transaction or a series of related transactions, twenty percent (iii20%) that sufficient commitments have been obtained with respect to such Acquisition Proposal that or more of the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and outstanding shares of the Company's Common Stock (iv) that such Acquisition Proposal is not subject to any regulatory approvals whether by purchase, merger, consolidation, share exchange, business combination or other legal, financial similar transaction) or other restrictions that could reasonably be expected to prevent consummation. Thetwenty percent (20%) or more of the dollar value of the assets of the Company.

Acquisition Proposals. Neither (a) Subject to Sections 6.03(b), 6.03(c), 6.03(d) and 6.03(f), (i) neither the Company nor any of its subsidiaries Subsidiaries shall, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, nor shall the Company or any of its subsidiaries Subsidiaries authorize or knowingly permit any of the directors of the Company, the senior executive officers of the Company, or any recapitalizationinvestment bankers, business combinationattorneys, consolidationaccountants or other advisors retained by the Company or its Subsidiaries (collectively, merger“Company Representatives”) to, liquidationdirectly or indirectly, dissolution (A) solicit, initiate or similar transaction with knowingly facilitate or encourage the submission of any Acquisition Proposal, (B) enter into or participate in any discussions or negotiations with, or furnish any non-public information or access relating to the Company or any of its subsidiaries or Subsidiaries to, any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication Third Party with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such any inquiry or proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationlead to an Acquisition Proposal or (C) enter into any agreement in principle, letter of intent, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal and (ii) except as otherwise provided in this Section 6.03, the Board of Directors of the Company shall not fail to make, and shall not withdraw, withhold, qualify or modify, or resolve to or publicly propose to withdraw, withhold, qualify or modify in a manner adverse to Parent, the Company Board Recommendation, or approve, endorse or recommend, or publicly propose to approve, endorse or recommend, an Acquisition Proposal (any of the foregoing in this clause (ii), an “Adverse Recommendation Change”); provided, that, for the avoidance of doubt, neither (1) the determination by the Board of Directors in accordance with this Section 6.03 that an Acquisition Proposal constitutes a Superior Proposal or (2) the delivery by the Company of the notice required by Section 6.03(f) shall, in and of itself, constitute an Adverse Recommendation Change. TheThe Company shall immediately cease any discussions or negotiations with any person with respect to an Acquisition Proposal or any inquiry or proposal that could reasonably be expected to lead to an Acquisition Proposal and reasonably promptly after the date hereof terminate access to any Third Party or its Representatives to any electronic data room maintained by the Company or its Subsidiaries with respect to the transactions contemplated by this Agreement. 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 except, with respect to clause (x), (A) to the extent that prior to the receipt of the Company Shareholder Approval the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors and outside legal counsel, the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under Applicable Law or (B) to the extent that any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party includes a “fall-away” or other similar provision that causes such standstill provision to be released, waived, modified or amended as a result of the Company entering into this Agreement in and of itself.

Acquisition Proposals. Neither the (a) The Company nor any of shall not, and shall cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, "Representatives") not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate inquiries or proposals with respect to any proposal Acquisition Proposal, (ii) engage or offer from participate in any Person negotiations with any person concerning any Acquisition Proposal or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition Acquisition Proposal, except to (A) seek to clarify and understand the terms and conditions of any inquiry or purchase of all proposal made by any person or (B) notify a person that has made or, to the knowledge of the Company, is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 6.11(a); provided, that, prior to the approval of the Merger by the shareholders of the Company by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would violate its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than in Purchaser with respect to any Acquisition Proposal. The Company will promptly (within one business day) advise Purchaser following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the ordinary course substance thereof (including the material terms and conditions of business and not likely to interfere with the consummation identity of the Transactions) person making such inquiry or Acquisition Proposal, and copies of any portion proposed agreements, financing commitments, term sheets or letters of intent related thereto), and will keep Purchaser apprised on a current basis of any related developments, discussions and negotiations, including any amendments to or revisions of the assets ofmaterial terms of such inquiry or Acquisition Proposal. As used in this Agreement, "Acquisition Proposal" shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any equity third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (ii) any tender offer (including a self tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of the Company or its subsidiaries Subsidiaries whose assets, individually or any recapitalizationin the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, consolidationreorganization, mergerrecapitalization, liquidation, dissolution or other similar transaction with involving the Company or any of its subsidiaries Subsidiaries whose assets, individually or any other transaction in the consummation of which would aggregate, constitute 25% or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser more of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any consolidated assets of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither the (a) The Company nor any of shall not, and shall cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, "Representatives") not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of any proposal knowingly facilitate inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "any Acquisition Proposal", (ii) engage or participate in any negotiations regarding, with any person concerning any Acquisition Proposal or furnish to (iii) provide any other Person any confidential or nonpublic information with respect or data to, or otherwise cooperate have or participate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a person relating to any Acquisition Proposal; provided, that, prior to the approval of this Agreement and the transactions contemplated hereby (including the Merger) by the shareholders of the Company by the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal which was not solicited or encouraged Proposal, after the date of this Agreement if the and its Board reasonably determines of Directors concludes in good faith by a majority vote (i) after consultation with and receipt receiving the advice of advice from its outside legal counsel and with respect to financial matters, its financial advisors) that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failing failure to take such action is actions would more likely than not result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, the Company shall have provided such information to Purchaser and entered into a confidentiality agreement with such third party on material terms no less favorable to it than the Confidentiality Agreement. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Purchaser with respect to any Acquisition Proposal. The Company will promptly (and in any event within twenty-four (24) hours) advise Purchaser following receipt of any Acquisition Proposal or any inquiry which could reasonably determined be expected to constitute a breach lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), and will promptly (and in any event within twenty-four (24) hours) advise Purchaser of any related developments, discussions and negotiations, including any amendments 40 to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to Directors of the Company's shareholders from , to enforce any existing confidentiality, standstill or similar agreements to which it or any of its Subsidiaries is a financial point party relating to an Acquisition Proposal in accordance with its terms. The Company shall use its reasonable best efforts, subject to applicable law, to, within ten (10) business days after the date hereof, request and confirm the return or destruction of view any confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any such confidentiality, standstill or similar agreement. Unless and until this Agreement shall have been duly terminated in accordance with its terms, the Transactions Company shall not, and shall cause its Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement or other definitive transaction agreement (including other than a confidentiality agreement referred to and entered into in accordance with Section 6.12(a)) relating to any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) Subject to Sections 6.4(b) through (f), the Company nor agrees that it shall not, and that it shall direct its officers, directors, employees, agents and representatives, including any of its subsidiaries shallinvestment banker, attorney or accountant retained by the Company (collectively, “Representatives”) not to, directly or indirectly, through (i) initiate, solicit or knowingly encourage or facilitate any officerinquiries, directorproposals or offers with respect to, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets completion of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal", (ii) engage or participate in any negotiations regardingor discussions (other than to state that they are not permitted to have discussions) concerning, or furnish provide or cause to be provided any other Person non-public information or data relating to the Company in connection with, an Acquisition Proposal, (iii) approve, endorse or recommend any information with respect toAcquisition Proposal, or otherwise cooperate in any way with(iv) approve, endorse or recommend, or assist execute or participate inenter into any letter of intent, facilitate agreement in principle, merger agreement, acquisition agreement or encourage, any effort or attempt by any other Person similar agreement relating to do or seek any of the foregoingan Acquisition Proposal; provided, however, it is understood and agreed that any determination or action by the Company Board permitted under Section 6.4(b) or (c) or Section 8.1(c)(iii) shall not be deemed to be a breach of this Section 6.4(a). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. Notwithstanding anything in this Section 6.4(a), at any time prior to the Company Stockholder Approval, the Company may, in response to an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.4(a), that was made after the date hereof and that the Company Board determines in good faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation (hereinafter, “Appropriate Consultation”) constitutes, or may reasonably be expected to lead to, a Superior Proposal, (i) furnish information with respect to (subject, in each case, to receipt by the Company of to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement on terms substantially similar to those contained in the agreement referred Confidentiality Agreement (except for such changes specifically necessary in order for the Company to in Section 4.02(b)be able to comply with its obligations under this Agreement), and negotiate or otherwise engage in discussions withincluding the standstill provisions thereof; provided, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counselhowever, that failing any material non-public information provided to take such action Person has previously been provided to Parent, or is reasonably determined provided to constitute a breach of the fiduciary duties of the Board under applicable LawParent contemporaneously, and (ii) after consultation participate in discussions or negotiations with such Person and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to its Representatives regarding such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) Except as otherwise expressly provided in this Section 5.4 or in Section 5.8, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor will it authorize or permit any of its subsidiaries shallSubsidiaries, directly directors, officers, or indirectlyemployees to, through any officerand the Company shall not permit the Representatives of the Company to, director(i) initiate, agent solicit or otherwise, solicit, initiate knowingly facilitate or encourage any inquiries with respect to, or the making of of, any proposal Acquisition Proposal, (ii) engage in any negotiations or offer from discussions concerning, or provide access to its or its Subsidiaries’ properties, books and records or any confidential information or data to, any Person relating to an Acquisition Proposal or any proposal, offer or inquiry that would reasonably be expected to lead to, an Acquisition Proposal, (iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement, (iv) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (v) execute or enter into, any letter of intent, merger agreement, acquisition agreement or purchase of all or other agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (each, an “Acquisition Agreement”); provided that it is understood and agreed that any determination or action by the Company Board or the Company expressly permitted under Section 5.4(b) or Section 5.4(c) shall not be deemed to be a breach or violation of this Section 5.4(a) or, in the ordinary course case of business Section 5.4(b)(i)–(v), give Parent a right to terminate this Agreement pursuant to Section 7.4. The Company shall, and not likely to interfere shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any solicitations, discussions or negotiations with any Person (other than the consummation parties hereto) in connection with an Acquisition Proposal, in each case that exists as of the Transactionsdate hereof. The Company also agrees that it will promptly request each Person (other than the parties hereto) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or destroy all confidential information furnished to such Person by or on behalf of it or any portion of its Subsidiaries prior to the date hereof. The Company shall promptly (but in no event later than 48 hours after receipt thereof) notify Parent in writing of the assets of, receipt of any Acquisition Proposal or any equity interest inproposal, offer or inquiry that could reasonably be expected to lead to an Acquisition Proposal after the date hereof, which notice shall include a summary of the material terms of and the identity of the Person making, such Acquisition Proposal, other proposal, offer or inquiry and the Company shall thereafter keep Parent reasonably informed in all material respects on a reasonably current basis of any substantive developments (including any material change to the terms thereof) regarding any such Acquisition Proposal and shall promptly (but in no event later than 48 hours after receipt) provide to Parent copies of all substantive written requests, proposals, offers or proposed agreements received by the Company or any of its subsidiaries Subsidiaries that describe any terms or conditions of any recapitalizationsuch Acquisition Proposal. Notwithstanding anything to the contrary herein, business combinationthe Company may grant a waiver, consolidation, merger, liquidation, dissolution amendment or similar transaction with release under any confidentiality or standstill agreement to the extent necessary to allow for a confidential Acquisition Proposal to be made to the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by Board if the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from legal counsel to the Company that the failure to waive or release such provision would be reasonably likely to be inconsistent with its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither The Company agrees that it shall not, and shall cause its Subsidiaries and its and its Subsidiaries' representatives not to, solicit or encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any person relating to, any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company nor or any of its subsidiaries shall, directly Subsidiaries or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire in any Person relating to any acquisition manner a substantial equity interest in, or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any a substantial portion of the assets or deposits of, or any equity interest in, the Company or any of its subsidiaries or any recapitalizationSubsidiaries, business combination, consolidation, merger, liquidation, dissolution or similar transaction with other than the Company or transactions contemplated by this Agreement (any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impedeforegoing, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"); provided that nothing contained in this Agreement shall prevent the Company Board from (i) making any disclosure to its stockholders if, in the good faith judgment of the Company Board, failure so to disclose would be inconsistent with its obligations under applicable law; (ii) before the date of the Company Meeting, providing (or participate in any negotiations regarding, or furnish to any other Person any authorizing the provision of) information with respect to, or otherwise cooperate engaging in any way (or authorizing) such discussions or negotiations with, any person who has made a bona fide written Acquisition Proposal received after the date hereof which did not result from a breach of this Section 6.06; or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (iii) recommending such an Acquisition Proposal to do or seek any of its stockholders if and only to the foregoing; provided, however, that the Company may furnish information to (subjectextent that, in each case, to receipt by the Company case of a confidentiality agreement on terms substantially similar to the agreement actions referred to in Section 4.02(b)clause (ii) or (iii), and negotiate or otherwise engage in discussions with, any party who delivers a written (x) such Acquisition Proposal which was not solicited or encouraged is a Superior Proposal, (y) the Company Board, after having consulted with and considered the date advice of this Agreement if outside counsel to the Board reasonably Company Board, determines in good faith that providing such information or engaging in such negotiations or discussions, or making such recommendation is required in order to discharge the directors' fiduciary duties to the Company and its stockholders in accordance with the DGCL and (z) the Company receives from such person a confidentiality agreement substantially in the form of the Confidentiality Agreement. For purposes of this Agreement, a "Superior Proposal" means any Acquisition Proposal by a majority vote (i) third party on terms that the Company Board determines in its good faith judgment, after consultation with and receipt receiving the advice of advice from its outside legal counselfinancial advisors, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is be materially more favorable to the Company's shareholders from a financial point of view to the Company and its stockholders than the Transactions Merger and the other transactions contemplated hereby, after taking into account the likelihood of consummation of such transaction on the terms set forth therein, taking into account all legal, financial (including the financing terms of any adjustment such proposal), regulatory and other aspects of such proposal and any other relevant factors permitted under applicable law, after giving the Acquiror at least two business days to respond to such third-party Acquisition Proposal once the Board has notified the Acquiror that in the absence of any further action by the Acquiror it would consider such Acquisition Proposal to be a Superior Proposal, and then taking into account any amendment or modification to this Agreement proposed by the Acquiror. The Company also agrees immediately to cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than the Acquiror, with respect to any of the foregoing. The Company shall promptly (within one business day) advise the Acquiror following the receipt by it of any Acquisition Proposal and the material terms and conditions proposed by Purchaser in response to thereof (including the identity of the person making such Acquisition Proposal), and advise the Acquiror of any developments (iiiincluding any change in such terms) that sufficient commitments have been obtained with respect to such Acquisition Proposal promptly upon the occurrence thereof. The Company agrees that neither it nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of or release any of its rights under any confidentiality or standstill agreement to which it is a party. The Company shall 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. Nothing contained in this Section 6.06 or any other provision of this Agreement will prohibit the Company or the Company Board reasonably expects a transaction pursuant to such from notifying any third party that contacts the Company on an unsolicited basis after the date hereof concerning an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Theof the Company's obligations under this Section 6.06.

Acquisition Proposals. Neither the The Company nor will not, and will not permit or cause any of its subsidiaries shallSubsidiaries or any of their officers and directors to, and shall direct its and its Subsidiaries' employees, agents and Representatives (as defined below) not to, directly or indirectly, through any officer, director, agent or otherwiseinitiate, solicit, initiate encourage or encourage otherwise facilitate any inquiries or the making of any proposal or offer from any Person relating with respect to any acquisition (i) a merger, reorganization, share exchange, consolidation, business combination, recapitalization or similar transaction involving the Company, (ii) the purchase of all 15% or more of the assets (including equity securities of the Company's subsidiaries) of the Company and its subsidiaries taken as a whole, or (other than iii) the purchase of Shares not in the ordinary course of business (purchases pursuant to a Compensation and not likely to interfere with Benefit Plan being in the consummation ordinary course), but not, in any case, including the matters set forth in Section 6.2(a) of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions Disclosure Letter (any communication with respect such proposal or offer being hereinafter referred to the foregoing being as an "Acquisition Proposal") ). The Company will not, and will not permit or participate cause any of its Subsidiaries to, and will use commercially reasonable efforts to cause any of the officers and directors of it or its Subsidiaries not to and shall direct its and its Subsidiaries' employees, agents and Representatives not to, directly or indirectly, engage in any negotiations regardingconcerning, or furnish to provide any other Person any confidential information with respect or data to, or otherwise cooperate in have any way discussions with, any Person relating to an Acquisition Proposal, whether made before or assist after the date of this Agreement, or participate in, otherwise facilitate or encourage, any effort or attempt to make or implement an Acquisition Proposal (including, without limitation, by any other Person means of an amendment to do or seek any of the foregoingRights Agreement); provided, however, that nothing contained in this Agreement shall prevent the Company may furnish information or its board of directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (subject, in each case, to receipt ii) if the Merger shall not have been approved by the Company Requisite Vote by such date (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of a directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar equivalent to those contained in the Confidentiality Agreement (as defined below); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the agreement stockholders of the Company, if and only to the extent that, (i) in each such case referred to in Section 4.02(b)clause (A), and negotiate (B) or otherwise engage in discussions with(C) above, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date board of this Agreement if directors of the Board reasonably Company determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, counsel that failing to take such action is reasonably determined necessary in order for its directors to constitute a breach of the comply with their respective fiduciary duties of the Board under applicable Law, Law and (ii) in each case referred to in clause (B) or (C) above, the board of directors of the Company determines in good faith (after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a its financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (ivadvisor) that such Acquisition Proposal Proposal, if accepted, is not subject reasonably likely to any regulatory approvals or other be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, be reasonably likely to result in a more favorable transaction than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or other restrictions negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company agrees that could reasonably it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement (as defined in Section 9.7). The Company will notify Parent promptly, but in any event not later than one day following receipt, if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be expected to prevent consummation. Theinitiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such negotiations or discussions.

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 6.4, the Company will not, nor will it permit any of its subsidiaries shallto, directly nor will it authorize or indirectly, through permit any officer, director, agent director or otherwise, solicit, initiate or encourage the making employee of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest ininvestment 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 the submission of any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions Acquisition Proposal (any communication with respect to the foregoing being an "Acquisition Proposal"as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or furnish to any other Person person any information with respect to, or otherwise cooperate in take any way withother action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or assist or participate in, facilitate or encouragemay reasonably be expected to lead to, any effort or attempt by any other Person to do or seek any of the foregoingAcquisition Proposal; provided, however, that nothing contained in this Section 6.4(a) shall prohibit the Company may furnish Board from furnishing information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a person that makes an unsolicited bona fide written Acquisition Proposal which was if, and only to the extent that (A) the Company Stockholder Meeting shall not solicited have occurred or encouraged shall have occurred and the Merger shall not have been approved, (B) the Company Board, after consultation with and based upon the date advice of this Agreement if the Board reasonably independent legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined necessary for the Company Board to constitute a breach of the comply with its fiduciary duties of to the Board Company's stockholders under applicable Law, (iiC) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation with its Financial Advisor and receipt of advice after taking into account the strategic benefits to be derived from the Merger, would, if consummated, result in a recognized investment banking firm, that such proposal is transaction more favorable to the Company's shareholders stockholders from a financial point of view than the Transactions Merger (including any adjustment such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such person an executed confidentiality/standstill agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement between Parent and the Company. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal by such person, the Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions proposed by Purchaser in response to of such Acquisition Proposal), (iii) that sufficient commitments have and shall promptly give Parent a copy of any information delivered to such person which has not previously been obtained delivered to Parent. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to such any possible Acquisition Proposal and shall notify each party that it, or any officer, director, investment advisor, financial advisor, attorney or other representative retained by it, has had discussions with during the 30 days prior to the date of this Agreement that the Company Board reasonably expects a transaction pursuant no longer seeks the making of any Acquisition Proposal. The Company agrees that it will take the necessary steps to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject promptly inform the individuals or entities referred to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thein the first sentence hereof of the obligations undertaken in this Section 6.4(a).

Acquisition Proposals. Neither From and after the date hereof, the Company nor any of its subsidiaries shallwill not and the Company and the Subsidiaries will use their best efforts to cause their respective directors, officers, employees, financial advisors, legal counsel, accountants and other agents and representatives not to initiate or solicit, directly or indirectly, through any officer, director, agent inquiries or otherwise, solicit, initiate or encourage the making of any proposal or offer from with respect to, engage in negotiations concerning, provide any Person information or data to, any person relating to any acquisition acquisition, business combination or purchase (including by way of a tender or exchange offer) of (i) all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any significant portion of the assets of, or any equity interest in, of the Company and the Subsidiaries, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% or more of the outstanding shares of capital stock of any Subsidiary of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an a "Acquisition Takeover Proposal") or participate in any negotiations regarding), or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of than the foregoingMerger; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of the Company may furnish from (i) furnishing information to (subject, but only pursuant to a confidentiality agreement in each case, to receipt customary form) or entering into discussions or negotiations with any person or group that makes a Superior Proposal that was not solicited by the Company or which did not otherwise result from a breach of a confidentiality agreement on terms substantially similar this Section 7.2, if, and only to the agreement referred to in Section 4.02(b))extent that, and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if (A) the Board reasonably of Directors of the Company, based upon the advice of outside legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined necessary for the Board of Directors to constitute a breach comply with its fiduciary duties to stockholders imposed by law, (B) concurrently with furnishing such information to, or entering into discussions or negotiations with, such person or group making this Superior Proposal, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, and (C) the Company keeps Parent informed of the fiduciary duties status and all material information including the identity of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained person or group with respect to any such Acquisition Proposal that discussions or negotiations to the Board reasonably expects a transaction pursuant to extent such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is disclosure would not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The47

Acquisition Proposals. Neither the (a) The Company agrees that neither it, nor any of its subsidiaries officers and directors of any of shall, and that it shall direct and use its reasonable efforts to cause its employees, agents and representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, through any officerinitiate, director, agent or otherwise, solicit, initiate solicit or encourage any inquiries or the making of any proposal or offer from with respect to a merger, reorganization, share exchange, consolidation or similar transaction, or any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion 10% or more of the assets of, or any equity interest in, securities of the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect such proposal or offer being hereinafter referred to the foregoing being as an "Acquisition Proposal"), it being understood that any such activities engaged in prior to the date of this Agreement do not violate this Section 6.9. The Company further agrees that from and after the date hereof neither it nor any of its officers and directors shall, and that it shall direct and use its reasonable efforts to cause its employees, agents and representatives (including any investment banker, attorney or accountant retained by them or any of their Subsidiaries) not to, directly or participate indirectly, knowingly engage in any negotiations regardingconcerning, or furnish to provide any other Person any confidential information with respect or data to, or otherwise cooperate in have any way discussions with, any person relating to an Acquisition Proposal, or assist or participate in, otherwise knowingly facilitate or encourage, any effort or attempt by any other Person to do make or seek any of the foregoingimplement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company may furnish or its Board of Directors from (A) complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to (subject, a request therefor by a Person who has made a bona fide written Acquisition Proposal that was not solicited in each case, to receipt by violation of this Section 6.9(a) if the Company Board of a Directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheConfidentiality

Acquisition Proposals. Neither (a) From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 6.5, the Company will not, nor will it permit any of its subsidiaries shallto, directly nor will it authorize or indirectly, through permit any officer, director, agent director or otherwise, solicit, initiate or encourage the making employee of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest ininvestment 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 the submission of any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions Acquisition Proposal (any communication with respect to the foregoing being an "Acquisition Proposal"as hereinafter defined) or (ii) participate in any discussions or negotiations regarding, or furnish to any other Person person any information with respect to, or otherwise cooperate in take any way withother action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or assist or participate in, facilitate or encouragemay reasonably be expected to lead to, any effort or attempt by any other Person to do or seek any of the foregoingAcquisition Proposal; provided, however, that nothing contained in this Section 6.5(a) shall prohibit the Company may furnish Board from furnishing information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a person that makes an unsolicited bona fide written Acquisition Proposal which was if, and only to the extent that (A) the Company Stockholder Meeting shall not solicited or encouraged have occurred, (B) the Company Board, after the date of this Agreement if the Board reasonably consultation with independent legal counsel, determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined necessary for the Company Board to constitute a breach of the comply with its fiduciary duties of to the Board Company's stockholders under applicable Law, (iiC) the Company Board determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation with its Financial Advisors and receipt after taking into account the strategic benefits to be derived from the Merger and the long-term prospects of advice from Parent and its subsidiaries, would, if consummated, result in a recognized investment banking firm, that such proposal is transaction more favorable to the Company's shareholders stockholders from a financial point of view than the Transactions Merger (any such more favorable bona fide unsolicited Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), provided that, if necessary solely to make the determination contemplated by clause (C) above, upon notification to Parent of the identity of such third party, the Company may communicate with such third party, with such communication to be solely for the limited purpose set forth in this proviso, and (D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action; and (y) receives from such person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in paragraph 5.3 hereof between Parent and the Company. Prior to providing any information to or entering into discussions (including discussions permitted under the proviso contained in clause (C) above) or negotiations with any adjustment person in connection with an Acquisition Proposal by such person, the Company shall (i) notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, (ii) provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, together with any other information available to the Company related to the Acquisition Proposal, (iii) thereafter inform Parent on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions proposed by Purchaser in response to of such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that promptly give Parent a copy of any information delivered to such Acquisition Proposal is person which has not subject previously been reviewed by Parent. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any regulatory approvals possible Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or other legal, financial or other restrictions that could reasonably be expected entities referred to prevent consummation. Thein the first sentence hereof of the obligations undertaken in this Section 6.5(a).

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Acquisition Proposal, except to notify such person of the making existence of the provisions of this Section 6.12(a); provided, that, prior to the date of the Company Meeting, in the event the Company receives an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.12(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that (1) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (2) failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information or data, or participating in any negotiations or discussions, in each case, permitted pursuant to the foregoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any proposal or offer from any Person relating confidential information provided to any acquisition or purchase of all or person (other than the Company) pursuant to such agreement. The Company will promptly (and in the ordinary course any event within twenty-four (24) hours) advise Parent following receipt of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, Acquisition Proposal or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of inquiry which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions substance thereof (including any adjustment to the terms and conditions proposed by Purchaser in response of and the identity of the person making such inquiry or Acquisition Proposal, copies of any written Acquisition Proposal and written summaries of any material oral communications relating to such an Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect and will keep Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationProposal. The57

Acquisition Proposals. Neither (a) The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Purchaser with respect to any Acquisition Proposal. Subject to Section 6.4(b) and this Section 6.13, the Company nor any agrees that it will not, and will cause each of its subsidiaries shallSubsidiaries not to, and use its reasonable best efforts to cause its and their respective officers, directors, employees, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate any proposal inquiries or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "any Acquisition Proposal", (ii) engage or participate in any negotiations regardingwith any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or furnish have or participate in any discussions with, any person relating to any other Person Acquisition Proposal (except to notify a person that has made or, to the knowledge of such party, is making any information inquiries with respect to, or otherwise cooperate in any way withis considering making, or assist or participate inan Acquisition Proposal, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that existence of the Company may furnish information to (subject, in each case, to receipt by the Company provisions of a confidentiality agreement on terms substantially similar to the agreement referred to in this Section 4.02(b6.13(a)), and negotiate or otherwise engage (iv) unless this Agreement has been terminated in discussions withaccordance with its terms, approve or enter into any party who delivers a term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or nonbinding) (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.13(a)) in connection with or relating to any Acquisition Proposal which was not solicited or encouraged Proposal. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite Company Vote, the Company receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.13(a), the Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board reasonably determines of Directors of the Company concludes in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thecounsel and

Acquisition Proposals. Neither the The Company shall not, nor shall it permit any of its subsidiaries shallto, directly nor shall it authorize or indirectly, through permit any officer, director, agent director or otherwise, solicit, initiate or encourage the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets employee of, or any equity interest ininvestment banker, attorney, accountant or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (a) solicit, initiate or encourage the submission of any recapitalization, business combination, consolidation, merger, liquidation, dissolution Acquisition Proposal or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal"b) or participate in any discussions or negotiations regarding, or furnish to any other Person person any information with respect to, or otherwise cooperate in any way withagree to or endorse, or assist take any other action to facilitate any Acquisition Proposal or participate inany inquiries or the making of any proposal that constitutes, facilitate or encouragemay reasonably be expected to lead to, any effort or attempt by any other Person to do or seek any of the foregoingAcquisition Proposal; provided, however, that nothing contained in this Section 7.2 shall prohibit the Board of Directors of the Company may furnish from furnishing information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a written person or entity that makes an unsolicited bona fide Acquisition Proposal if, (A) the Board of Directors of the Company received the Acquisition Proposal prior to the expiration of 45 days following the date on which was not solicited a copy of this Agreement is made publicly available, (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that failure to do so would be inconsistent with its fiduciary duties under Applicable Law and (C) prior to taking such action, the Company (x) provides reasonable notice to Sponsor to the effect that it is taking such action and (y) receives from such person or encouraged entity an executed confidentiality agreement having terms no less favorable (in the aggregate and except as to standstill provisions) to the Company, than the terms of the Confidentiality Agreement, dated May 8, 2001, between the Company and Sponsor. Notwithstanding anything in this Agreement to the contrary, the Company shall as promptly as practicable advise Sponsor orally and in writing of the receipt by it (or any of the other entities or persons referred to above) after the date hereof of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to or any regulatory approvals or other legal, financial or other restrictions that inquiry which could reasonably be expected to prevent consummationlead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person making any such Acquisition Proposal or inquiry. TheThe Company will keep Sponsor fully informed of the status and details of any such Acquisition Proposal or inquiry. The term "Acquisition Proposal" as used herein means any proposal for a merger, consolidation or other business combination involving the Company or any of the Company Material Subsidiaries, any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company or any of the Company Material Subsidiaries (provided any transaction permitted under Section 6.1(c) shall not be deemed to be an Acquisition Proposal), any proposal or offer with respect to any recapitalization or restructuring of the Company or any of the Company Material Subsidiaries, or any proposal or offer with respect to any other transaction similar to any of the foregoing with respect to the Company or any of the Company Material Subsidiaries, other than the Merger contemplated by this Agreement and the transactions contemplated by the Conversion Term Sheet and the Post-Merger Integration Plan. Immediately after the execution and delivery of this Agreement, the Company will cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, "Representatives") not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate inquiries or proposals with respect to any proposal Acquisition Proposal, (ii) engage or offer from participate in any Person negotiations with any person concerning any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition Acquisition Proposal, except to notify a person that has made or, to the knowledge of the Company, is making any inquiries with respect to, or purchase is considering making, an Acquisition Proposal, of all or (other than the existence of the provisions of this Section 6.12(a); provided, that, prior to the adoption of this Agreement by the stockholders of the Company by the Requisite Company Vote, in the ordinary course event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries' Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of business Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisor) that failure to take such actions would be more likely than not likely to interfere with result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information permitted to be provided pursuant to the consummation of the Transactions) any portion of the assets of, or any equity interest inforegoing proviso, the Company shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal. The Company will promptly (within twenty-four (24) hours) advise Parent following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), and will keep Parent reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Acquisition Proposal. The Company shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its subsidiaries Subsidiaries is a party in accordance with the terms thereof. As used in this Agreement, "Acquisition Proposal" shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, or any recapitalizationthird party indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% of the consolidated assets of the Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning 25% or more of any class of equity or voting securities of the Company or its Subsidiaries whose assets, individually or in the aggregate, constitute more than 25% of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, consolidationreorganization, mergerrecapitalization, liquidation, dissolution or other similar transaction with involving the Company or any of its subsidiaries Subsidiaries whose assets, individually or any other transaction in the consummation of which would or could reasonably be expected to impedeaggregate, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser constitute more than 25% of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any consolidated assets of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither (a) The Company shall, and shall cause its Subsidiaries and its and their respective members, officers, employees and directors, and use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents (collectively, the “Restricted Parties”) to, immediately cease and cause to be terminated any discussions or negotiations with any parties (other than the parties to this Agreement and their Affiliates, representatives and advisors) that may be ongoing with respect to, or that would be reasonably expected by the parties to lead to, a Company nor any of Acquisition Proposal. The Company shall not and shall cause its subsidiaries shallSubsidiaries and its and their respective members, officers, employees and directors, and shall use reasonable best efforts to cause its stockholders (including without limitation the Majority Stockholders), representatives and agents not to, directly or indirectly, through (x) take any officer, director, agent or otherwise, solicit, initiate or encourage the making of action to enter into any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication agreement with respect to the foregoing being an "any Company Acquisition Proposal", or (y) or solicit, negotiate, furnish information to, accept, encourage, consider, participate in any negotiations regarding, or furnish to any other Person any information with respect discussions relating to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encouragepursue, any effort or attempt Company Acquisition Proposal, other than the transactions contemplated by any other Person to do or seek any of the foregoingthis Agreement; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar at any time prior to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged date that is 20 Business Days after the date of this Agreement if Agreement, in response to a bona fide written unsolicited Company Acquisition Proposal received after the date hereof that the Board reasonably of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes, or is reasonably expected to lead to, a Superior Proposal, and which Company Acquisition Proposal was not, directly or indirectly, the result of a breach by a majority vote any Restricted Party of this Section 9.13(a), the Company may, subject to compliance with Section 9.13(b) and Section 9.13(c), (i) after consultation furnish information with respect to the Company and receipt its Subsidiaries to the Person making such Company Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement not less restrictive of advice from its outside legal counselsuch Person than the Confidentiality Agreement (provided that all such information has previously been delivered or made available to Investor or is delivered or made available to Investor prior to or concurrently with the time it is delivered or made available to such Person), that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, and (ii) after consultation participate in discussions or negotiations with the Person making such Company Acquisition Proposal (and receipt of advice from a recognized investment banking firm, that its representatives) regarding such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Company Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. The.

Acquisition Proposals. Neither the (a) The Company nor any of and its subsidiaries shallSubsidiaries will not, directly or indirectlyindirectly through their respective officers, through any officerdirectors, directoremployees, agent representatives and agents, (i) initiate, facilitate, encourage or otherwise, solicit, initiate or encourage solicit the making of any proposal or offer from any Person relating to any acquisition or purchase of all Acquisition Proposal (as hereinafter defined) or (other than ii) except as permitted below, engage in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, negotiations or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere discussions with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any non-public information with respect to, or otherwise cooperate any third party relating to an Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person time prior to do or seek any the approval of the foregoing; provided, however, that Merger by the Company's stockholders the Company and the Board (i) may participate in negotiations or discussions (including, as a part thereof, making any counterproposal) with or furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any third party who that delivers a written Acquisition Proposal to the Company which was not solicited or encouraged after the date of this Agreement hereof if the Board reasonably determines in good faith by a majority vote (i) faith, after consultation with and receipt of advice from its outside legal counsel, that failing the failure to take participate in such action is discussions or negotiations or to furnish such information could reasonably determined be expected to constitute a breach of the Board's fiduciary duties of the Board under applicable Law, law and (ii) after consultation with without qualifying the obligations of the Company pursuant to Section 6.7(a) hereof, shall be permitted to (x) take and receipt of advice from a recognized investment banking firm, that such proposal is more favorable disclose to the Company's shareholders from stockholders a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained position with respect to the Merger or another Acquisition Proposal, or amend or with- draw such Acquisition Proposal position, pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (y) make disclosure to the Company's stockholders, in each case if the Board determines in good faith, after consultation with its outside counsel, that the Board reasonably expects a transaction pursuant failure to take such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that action could reasonably be expected to prevent consummationconstitute a breach of the Board's fiduciary duties under, or otherwise violate, applicable law. TheThe Company, Dow and their respective Subsidiaries, officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties other than Parent and The AES Corporation ("AES") conducted heretofore with respect to an Acquisition Proposal.

Acquisition Proposals. Neither (a) From the Company nor any of date hereof until the Closing Date and except as expressly permitted by this Section 8.08, Seller will not, and will ensure that its subsidiaries shalldirectors, officers, employees, investment bankers, financial consultants and other agents do not, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate initiate, knowingly encourage or encourage facilitate the making submission of any proposal Acquisition Proposal or offer from any inquiry with respect thereto, engage in any discussions or negotiations with any Person with respect thereto, or disclose any non-public information relating to any acquisition Seller or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect afford access to the foregoing being an "properties, books or records of Seller to any Person that has made any Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish that, subject to Section 10.03 hereof, nothing contained in this Section 8.08 shall prevent Seller from furnishing non-public information to (subjectto, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in entering into discussions or negotiations with, any party who delivers a written Person in connection with an unsolicited bona fide Acquisition Proposal which was not solicited or encouraged received from such Person after the date of this Agreement if the hereof that Seller's Board reasonably determines in good faith by could lead to a majority vote (i) after consultation with and receipt of advice from its outside legal counselSuperior Proposal; provided, further, that failing nothing contained in this Agreement shall prevent Seller's Board from complying with Rule 14e-2 or 14d-9 under the Exchange Act with regard to take such action is reasonably determined an Acquisition Proposal. Upon the execution and delivery of this Agreement, Seller will, and will ensure that the other Persons listed in the first sentence of this Section 8.08(a), cease and cause to constitute a breach of the fiduciary duties of the Board under applicable Lawbe terminated all discussions and negotiations, (ii) after consultation with and receipt of advice from a recognized investment banking firmif any, that such proposal is more favorable have taken place prior to the Company's shareholders from a financial point of view than the Transactions (including date hereof with any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained third parties with respect to such any possible Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither the (a) The Company nor will not, and shall direct its directors, officers, employees, agents and representatives (including any of its subsidiaries shalladvisor, investment banker, attorney or accountant retained by it) ("REPRESENTATIVES") not to, directly or indirectly, through any officer, director, agent or otherwiseinitiate, solicit, initiate encourage (including by way of furnishing non-public information or encourage assistance) or take any other action intended to facilitate any inquiries or the making of any proposal or offer from with respect to an Acquisition Proposal (as defined below), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") , whether made before or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; PROVIDED, HOWEVER, that the Company may, and may authorize and permit its employees, agents and Representatives to, furnish or cause to be furnished confidential information and may participate in such negotiations and discussions or take any other action otherwise prohibited by this Section 4.3(a) with any Person (unless such other action is subject to the restrictions of Section 4.3(b), in which case such other action shall only be permitted in accordance with such restrictions) that, after the date hereof, makes an unsolicited written Acquisition Proposal if and only to the extent that (A) the Company Board reasonably determines in good faith by a majority vote (i) after consultation having consulted with and receipt of advice from its outside legal counselcounsel and the Special Committee) that such action is necessary in order for its directors to comply with their fiduciary duties under Applicable Law; (B) prior to taking such action, the Company (x) provides notice to Parent to the effect that failing it intends to take such action and (y) receives from such Person an executed confidentiality agreement containing terms reasonably acceptable to the Special Committee and (C) such action is reasonably determined taken prior to constitute a breach receipt of the fiduciary duties of the Board under applicable LawCompany Requisite Vote. The Company will immediately cease and cause to be terminated any existing activities, (ii) after consultation discussions or negotiations with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained parties conducted heretofore with respect to such any of the foregoing. The Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement related to an Acquisition Proposal that to which it is a party. Notwithstanding the Board reasonably expects a transaction pursuant foregoing, nothing contained herein shall prevent the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to such an Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither Except as contemplated hereby, the Company nor agrees not to (and shall use reasonable efforts to cause its officers, directors and employees and any of its subsidiaries shallinvestment banker, attorney, accountant, or other agent retained by it not to) solicit, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate or encourage the making of any proposal or offer from to acquire all or any Person relating to any acquisition significant part of its business and properties or its capital stock, whether by merger, purchase of all assets, tender offer or otherwise (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal" and, any such transaction, an "Acquisition Transaction") or participate in provide any negotiations regarding, or furnish non-public information concerning the Company to any other Person any information third party in connection with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of an Acquisition Proposal. Notwithstanding the foregoing; provided, however, that the Company may furnish information or cause information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b))be furnished to, and negotiate or otherwise engage may participate in discussions and negotiations directly or through their respective representatives and enter into an agreement relating to an Acquisition Proposal with, any third party who delivers a written Acquisition Proposal which was not solicited (including parties with whom the Company has had discussions on any basis on or encouraged after prior to the date of this Agreement hereof) who makes an unsolicited proposal or offer to it, if the Board reasonably of Directors of the Company determines in good faith that the failure to consider such proposal or offer could reasonably be deemed to cause its directors to breach their fiduciary duties under applicable law. In addition, nothing contained in this Agreement shall prohibit the Company from (a) issuing a press release or otherwise publicly disclosing the terms of any Acquisition Proposal, (b) taking and disclosing to its stockholders any position, and making related filings with the SEC, as required by a majority vote Rules 14e-2 and 14d-9 under the Exchange Act with respect to any tender offer or (ic) after consultation with taking any action and receipt making any disclosure to its stockholders which the Board of advice from its outside legal counselDirectors of the Company determines in good faith, that failing would likely be required to take such action is reasonably determined be taken or made under applicable law (including, without limitation, laws relating to constitute a breach of the fiduciary duties of directors). In the Board under applicable Lawevent the Company receives an Acquisition Proposal, (ii) after consultation with and it shall promptly inform the Purchaser as to the receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that unless the Board reasonably expects a transaction pursuant to of Directors of the Company determines that giving such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that notice could reasonably be expected deemed to prevent consummation. Thecause its directors to breach their fiduciary duties under applicable law.

Acquisition Proposals. Neither (a) Except as expressly permitted by this Section 6.4, until the Effective Time or, if earlier, the termination of this Agreement pursuant to and in accordance with Section 8.3(a), the Company nor any of shall not, and shall cause the Company Subsidiaries not to, and shall not authorize or permit its subsidiaries shalland the Company Subsidiaries’ Representatives to, directly or indirectly, through any officer, director, agent or otherwise, solicit, initiate initiate, or knowingly take any action to facilitate or encourage the submission of any Alternative Proposal or the making of any proposal or offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Acquisition Proposal which was not solicited or encouraged after the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummationlead to any Alternative Proposal, or, subject to this Section 6.4(a) or Section 6.4(b): (i) conduct or engage in any discussions or negotiations with, disclose or afford access to any non-public information relating to the Company or any Company Subsidiary to, or knowingly assist, participate in, knowingly facilitate, or knowingly encourage any effort by, any third party that is seeking to make, or has made, any Alternative Proposal; (ii) except where the Company Board (or a committee thereof) makes a good faith determination, after consultation with outside legal counsel and its financial advisor, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any Company Subsidiaries; or (iii) enter into any agreement, letter of intent, term sheet or other Contract relating to any Alternative Proposal (each, a “Company Acquisition Agreement”). TheExcept as expressly permitted by this Section 6.4, the Company Board shall not effect a Company Adverse Recommendation Change. Except as expressly permitted by this Section 6.4, until the Effective Time, or, if earlier, the termination of this Agreement pursuant to and in accordance with Section 8.3(a), the Company shall, and shall cause the Company Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Alternative Proposal, and the Company shall use its commercially reasonable efforts to cause (and shall send written notice demanding that) any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any Company Subsidiary that was furnished by or on behalf of the Company and the Company Subsidiaries to return or destroy all such information.

Acquisition Proposals. Neither the (a) The Company nor any of agrees that it will not, and will cause its subsidiaries shallSubsidiaries and its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, through any officer, director, agent or otherwise(i) initiate, solicit, initiate knowingly encourage or encourage the making of knowingly facilitate any proposal inquiries or offer from proposals with respect to, (ii) engage or participate in any Person negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition Acquisition Proposal, except, for purposes of this clause (iii), to notify such person of the existence of the provisions of this Section 6.13(a); provided, that, for purposes of this clause (iii), prior to the date of receipt of the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.13(a), it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or purchase cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of all Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that (A) such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (B) failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to providing any nonpublic information or data or participating in any discussions, in each case, permitted pursuant to the foregoing proviso, the Company shall have provided such information or data to Parent and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Parent) pursuant to such agreement. Promptly (and in the ordinary course any event within twenty-four (24) hours) following receipt of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, Acquisition Proposal or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of inquiry which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected lead to materially dilute the benefits to Purchaser of the Transactions (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company shall advise Parent of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written such Acquisition Proposal which was not solicited or encouraged after inquiry and the date of this Agreement if the Board reasonably determines in good faith by a majority vote (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions substance thereof (including any adjustment to the terms and conditions proposed by Purchaser in response of and the identity of the person making such inquiry or Acquisition Proposal, copies of any written Acquisition Proposal and written summaries of any material oral communications relating to such an Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect and will keep Parent apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. TheProposal.

Acquisition Proposals. Neither the Company nor any of (a) Fourth Street agrees that it will not, and will cause its subsidiaries shalldirectors, directly or indirectlyofficers, through any officeremployees and Representatives and Affiliates not to, director, agent or otherwise(i) initiate, solicit, initiate or knowingly encourage the making of any proposal or offer from any Person relating to any acquisition facilitate inquiries or purchase of all or (other than in the ordinary course of business and not likely to interfere with the consummation of the Transactions) any portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any recapitalization, business combination, consolidation, merger, liquidation, dissolution or similar transaction with the Company or any of its subsidiaries or any other transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Purchaser of the Transactions (any communication proposals with respect to the foregoing being an "Acquisition Proposal"to, (ii) engage or participate in any negotiations regardingconcerning, or furnish to (iii) provide any other Person any confidential or nonpublic information with respect or data to, or otherwise cooperate have or participate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that the Company may furnish information to (subject, in each case, to receipt by the Company of a confidentiality agreement on terms substantially similar to the agreement referred to in Section 4.02(b)), and negotiate or otherwise engage in discussions with, any party who delivers a written Person relating to, any Acquisition Proposal; provided, that, in the event Fourth Street receives an unsolicited bona fide Acquisition Proposal which was that does not solicited violate (i) and (ii) above at any time prior to, but not after, the time this Agreement is adopted by the Fourth Street Shareholder Approval, and Fourth Street’s Board of Directors concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or encouraged after is reasonably likely to result in a Superior Proposal, Fourth Street may, and may permit its officers and Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that the Board of Directors of Fourth Street concludes in good faith (and based on the written advice of outside legal counsel) that failure to take such actions would constitute, or would be reasonably likely to result in, a breach of its fiduciary obligations to the Fourth Street Shareholders under applicable Law; provided further, that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Fourth Street shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement. Fourth Street will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement if with any Persons other than Seacoast with respect to any Acquisition Proposal. Fourth Street shall promptly (and in any event within two Business Days) advise Seacoast following the Board reasonably determines in good faith by a majority vote receipt or notice of any Acquisition Proposal and the substance thereof (i) after consultation with and receipt of advice from its outside legal counsel, that failing to take such action is reasonably determined to constitute a breach including the identity of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a recognized investment banking firm, that such proposal is more favorable to the Company's shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchaser in response to Person making such Acquisition Proposal), (iii) and will keep Seacoast apprised of any related developments, discussions and negotiations on a current basis. Fourth Street agrees that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects any breach by its Representatives of this Section 4.12 shall be deemed a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such Acquisition Proposal is not subject to any regulatory approvals or other legal, financial or other restrictions that could reasonably be expected to prevent consummation. Thebreach by Fourth Street.