Common use of No Shopping Clause in Contracts

No Shopping. (a) The Company will not, and will use its reasonable best efforts to ensure that its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would create a reasonable possibility of a breach of the fiduciary duties of the Board of Directors to the Company's shareholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Takeover Proposal. ARTICLE VI.

No Shopping. (a) The Until the Effective Time or the termination of this Agreement in accordance with its terms, the Company will shall not, and will use its reasonable best efforts to ensure that shall not authorize or permit any of its officers, directors, employeesagents, investment bankersfinancial advisers, attorneys, accountants and or other agents do notrepresentatives to, directly or indirectly: , solicit, initiate or encourage submission of proposals or offers from any person (iother than Parent or Sub or their affiliates) initiaterelating to, solicit or that could reasonably be expected to lead to, a Business Combination or participate in any negotiations or discussions 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 take attempt by any action other person to facilitate do or seek a Business Combination, other than to advise such person of the making ofexistence and content of this Section 5.02; provided, any offer or however, that the Company may, in response to an unsolicited written proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement from a third party with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for a Business Combination that the Company engage Board determines, in negotiations or discussions withits good faith judgment, or provide any information or data to, any Person (other than Parent, any after consultation with and the receipt of the advice of its affiliates or representatives financial advisor and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required under applicable law. a Superior Proposal, (bi) Notwithstanding the foregoingfurnish access and information to, prior to the acceptance of Shares pursuant to the Offerand negotiate, explore or otherwise engage in substantive discussions with such third party, only if the Company may furnish information concerning Board determines, in its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations good faith judgment after consultation with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from its outside legal counsel counsel, that failing to the Company, the failure to provide take such information or access or to engage in such discussions or negotiations action would create a reasonable possibility of constitute a breach of the fiduciary duties of the Company Board of Directors under applicable Law and (ii) take and disclose to the Company's shareholders a position with respect to another Business Combination proposal, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 under applicable law (the Exchange Act. Prior to furnishing any non-public information to, entering into negotiations with, or accepting a Takeover Superior Proposal which satisfies clauses from, such third party, the Company will (x) provide prompt notice to Parent to the effect that it is furnishing information to or entering into discussions or negotiations with such third party and (y) being referred receive from such third party an executed confidentiality agreement in reasonably customary form on terms not more favorable to herein as a such third party than the terms contained in the Letter Agreement, dated February 25, 2002, between the Company and Parent (the "Superior ProposalConfidentiality Agreement"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder will immediately cease and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof)terminated any existing solicitation, plus initiation, encouragement, activity, discussion or negotiations with any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of parties conducted heretofore by the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement its representatives with respect to any Takeover Proposal. ARTICLE VIBusiness Combination.

No Shopping. (a) The From the date of this Agreement through the date set forth in Section 11.1(b)(1), neither the Significant Shareholders nor the Company will, nor will notany of them authorize or permit any officer, and will use its reasonable best efforts to ensure that its officersdirector or employee of or any investment banker, directorsattorney, employeesaccountant or other representative retained by any of them to, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiatesolicit, solicit initiate or encourageencourage the submission of a proposal or offer from any Person relating to, or that could reasonably be expected to lead to, any Other Bid (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making ofof any proposal that constitutes, any offer or proposal which constitutes or is may reasonably likely be expected to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than ParentOther Bid, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would create a reasonable possibility of a breach of the fiduciary duties of the Board of Directors to the Company's shareholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Takeover Proposal. ARTICLE VIOther Bid; provided, however, that if, and only if, prior to the approval of this Agreement and the transactions contemplated hereby by the Shareholders, at the meeting held pursuant to Section 7.11, the Company receives an unsolicited indication of interest from any Person relating to an Other Bid that the board of directors of the Company determines, reasonably and in good faith after reasonable investigation in consultation with and based on the advice of its outside financial advisor, is or could reasonably be expected to lead to a Superior Proposal (as defined below), then the Company may, pursuant to a customary confidentiality agreement with terms not more favorable to such Person than to Purchaser under the Confidentiality Agreement (as defined in Section 7.6(b)) and in each case upon prior written notice to Purchaser of at least two Business Days, (x) furnish the same information to such Person as was previously furnished to Purchaser, as revised or updated to reflect any changes or additions to such information (provided that such revised information is contemporaneously furnished to Purchaser to the extent it had not been so furnished previously), (y) negotiate, explore or otherwise engage in substantive discussions with such Person, and (z) change or withdraw its recommendation that the Shareholders vote in favor of approving this Agreement and the transactions contemplated hereby at the meeting held pursuant to Section 7.11 (provided that such amendment or withdrawal shall not limit or otherwise affect the right of Purchaser to terminate this Agreement pursuant to Section 11.1(e)), but in each case only if such board also determines, reasonably and in good faith after reasonable investigation in consultation with and based on the advice of its outside legal counsel, that failing to cause the Company to take such action would violate such board’s fiduciary duties to the Shareholders under Applicable Law.

No Shopping. Parent shall not and shall not permit any of its agents or representatives (a) The Company will notincluding, and will use its reasonable best efforts to ensure that its officers, directors, employeeswithout limitation, investment bankers, attorneysattorneys and accountants) and shall not permit any of the officers, accountants employees, agents, affiliates and other agents do notrepresentatives of the Company or any Subsidiary to, directly or indirectly: , (i) initiatesolicit, solicit initiate or encourageencourage the submission of any inquiries, indications of interest, proposals of offers from any corporation, partnership, person, entity or group, other than Purchaser (collectively, "Third Parties"), concerning the sale of any equity security of, or take any action to facilitate other interest in, the making ofCompany or any Subsidiary, the sale of any offer assets of the Company or proposal which constitutes any Subsidiary (other than sales in the ordinary course of business or is reasonably likely to lead to any Takeover matters specifically disclosed in the Disclosure Schedule hereto) or any merger, recapitalization or other business combination transaction involving the Company or any of its Subsidiaries (an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding, or enter into any agreement with respect to agreements or understandings relating to, any Takeover Proposal, or (iii) in of the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions foregoing with, or provide any information concerning the Company, its Subsidiaries or data any of the foregoing to, any Person Third Parties including any Third Parties that the Parent had conducted negotiations with prior to the date of this Agreement, or (other than Parentiii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any Third Party to do or seek any of the foregoing. Prior to the Closing, at Purchaser's request, Parent shall use its affiliates best efforts to cause the Company to cause the destruction or representatives return of all non-public, confidential or proprietary information concerning the Company and except for information which has been previously publicly disseminated by the Company) relating Subsidiaries provided to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit potential purchasers of the Company or the Company's Board from (i) taking and disclosing to assets thereof. Parent will immediately notify Purchaser after the Company's stockholders receipt by it or position any of its agents of any inquiry, indication of interest, proposal or offer with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would create a reasonable possibility of a breach of the fiduciary duties of the Board of Directors to the Company's shareholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into by any agreement with respect Third Party and will immediately deliver to Purchaser any Takeover Proposal. ARTICLE VIwritten documentation relating thereto.

No Shopping. (a) The Company will shall not, and will use its reasonable best efforts to ensure that shall not authorize or permit any of its officers, directors, employeesagents, investment bankersfinancial advisers, attorneys, accountants and or other agents do notrepresentatives to, directly or indirectly: (i) initiate, solicit solicit, initiate or encourage submission of proposals or offers from any Person relating to, or that could reasonably be expected to lead to, a Business Combination or participate in any negotiations or discussions 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 take attempt by any action other Person to facilitate do or seek a Business Combination; provided, however, that, prior to the making oftime at which the Company Shareholders' Approval has been obtained, any offer or the Company may, in response to an unsolicited written proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement from a third party with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, a Business Combination that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders asof Directors determines, in the its good faith judgment judgment, after consultation with and the receipt of the Board after receiving advice from of its financial advisor and outside counsel, is required under applicable law. a Superior Proposal, (bi) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreementsto, and may negotiate and participate negotiate, explore or otherwise engage in substantive discussions and negotiations with such Person concerning a Takeover Proposal third party, only if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Company's Board of Directors of the Companydetermines, only in its good faith judgment after receipt of advice from consultation with its financial advisors and outside legal counsel counsel, that failing to the Company, the failure to provide take such information or access or to engage in such discussions or negotiations action would create a reasonable possibility of a breach of the fiduciary duties of the Company's Board of Directors under applicable law and (ii) take and disclose to the Company's shareholders a position with respect to another Business Combination proposal, or amend or withdraw such position, pursuant to Rules 14d-9 and 14e-2 under applicable law (the Exchange Act. Prior to furnishing any non-public information to, entering into negotiations with or accepting a Takeover Superior Proposal which satisfies clauses from such third party, the Company will (x) provide prompt notice to Parent to the effect that it is furnishing information to or entering into discussions or negotiations with such third party and (y) being referred receive from such third party an executed confidentiality agreement in reasonably customary form on terms not materially more favorable to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other such third party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with than the terms of this Section 5.3(b), contained in the Board of Directors may terminate this Letter Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof6.1). The Company will immediately cease and cause to be terminated any existing solicitation, plus initiation, encouragement, activity, discussion or negotiations with any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of parties conducted heretofore by the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement its representatives with respect to any Takeover Proposal. ARTICLE VIBusiness Combination.

No Shopping. (a) The Company and its Subsidiaries will not, and will use its reasonable best efforts to ensure that its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiate, solicit through any officer, director, agent, financial adviser, attorney, accountant or other representative or otherwise, solicit, initiate or encourage submission of proposals or offers from any Person relating to, or that could reasonably be expected to lead to, an Acquisition Transaction or participate in any negotiations or discussions 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 take attempt by any action other Person to facilitate the making ofdo or seek an Acquisition Transaction; PROVIDED, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required under applicable law. (b) Notwithstanding the foregoingthat, prior to the acceptance approval of Shares pursuant to this Agreement by the Offerstockholders at the Company Stockholders Meeting, the Company may furnish information concerning its businessmay, properties or assets in response to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal with respect to the Company relating to any such transaction which the Board determines in good faith, after receiving advice an Acquisition Transaction from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of third party that the Board of Directors determines, in its good faith and reasonable judgment, after consultation with its financial advisor, is a Superior Proposal, pursuant to a customary confidentiality agreement with terms not substantially more favorable to such third party than the confidentiality agreement, dated as of October 23, 2002, between the CompanyCompany and the Parent (the "Confidentiality Agreement"), only after receipt of advice from outside legal counsel furnish the same information to such third party as was previously furnished to Parent, as revised or updated to reflect any changes or additions to such information (provided that such revised information is contemporaneously furnished to Parent to the Companyextent it had not been previously so furnished), the failure to provide such information and negotiate, explore or access or to otherwise engage in substantive discussions with such discussions or negotiations third party, but only if the Board of Directors determines, in good faith and in its reasonable judgment after consultation with its outside counsel that failing to take such action would create a reasonable possibility of result in a breach of the fiduciary duties of the Board of Directors under applicable Law. Notwithstanding the foregoing, the Company shall be permitted to take and disclose to the Company's shareholders under applicable law (stockholders a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement position with respect to a Superior Proposalthe Merger or another Acquisition Transaction proposal, PROVIDED that the Company shallor amend or withdraw such position, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither Rules 14d-9 and 14e-2 under the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Takeover Proposal. ARTICLE VIExchange Act.

No Shopping. (a1) The Company will FAL shall not, and will use shall not authorize or permit any of its reasonable best efforts to ensure that (or any of its Subsidiaries') officers, directors, employeesagents, investment bankersfinancial advisors, attorneys, accountants and or other agents do notRepresentatives to, directly or indirectly: , solicit, initiate or encourage submis- sion of proposals or offers from any Person relating to, or that could reasonably be expected to lead to, a Business Combination or participate in any nego- tiations or discussions 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 a Busi- ness Combination; provided, however, that, prior to -------- ------- the FAL Stockholders' Approval, FAL may, in response to an unsolicited written proposal from a third party with respect to a Business Combination that FAL's Board of Directors determines, in its good faith judgment, after consultation with and the receipt of the advice of its financial advisor and outside counsel with customary qualifications, is a Superior Proposal, (i) initiatefurnish information to, solicit and negotiate, explore or encourageotherwise engage in substan- tive discussions with such third party, or take any action only if FAL's Board of Directors determines, in its good faith judgment after consultation with its financial advisors and outside legal counsel, that it is rea- sonably necessary in order to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, comply with its fiduciary duties under applicable law and (ii) enter into any agreement with respect take and disclose to any Takeover Proposal, or (iii) in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVER, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's Board from (i) taking and disclosing to the CompanyFAL's stockholders or a position with respect to tender another Business Combination proposal, or exchange offer by a third party amend or withdraw such position, pursuant to Rules 14D-9 Rule 14d-9 and 14e2 promulgated 14e-2 under the Exchange Act Act, or (ii) making make such disclosure to the CompanyFAL's stockholders as, which in the good faith judgment of FAL's Board of Directors is required by applicable law, based on the Board after receiving advice from of its outside counsel. Prior to furnishing any non- public information to, is required under applicable law. entering into negotiations with or accepting a Superior Proposal from such third party, FAL will (bi) Notwithstanding the foregoing, prior provide written notice to SUG to the acceptance of Shares pursuant effect that it is furnishing information to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in entering into discussions and or negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing third party and (yii) in receive from such third party an executed confidentiality agreement con- taining substantially the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would create a reasonable possibility of a breach of the fiduciary duties of the Board of Directors to the Company's shareholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material same terms and conditions of as the proposal) Confidentiality Agreement. FAL will immedi- ately cease and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof)terminated any existing solicitation, plus initiation, encouragement, activity, discussion or negotiations with any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation parties con- ducted heretofore by such Board of Directors FAL or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement its representa- tives with respect to any Takeover Proposal. ARTICLE VIBusiness Combination.

No Shopping. (a) The From the date hereof until the termination of this Agreement, the Company will not, and will use its reasonable best efforts to ensure that its officersnot permit any officer, directorsdirector, employeesemployee, investment bankers, attorneys, accountants and banker or other agents do notagent or any subsidiary of the Company to, directly or indirectly: indirectly (i) initiate, solicit or encourage, or take any action to facilitate the making ofseek, initiate or solicit any offer from any person, entity or proposal which constitutes group to acquire any shares of capital stock of the Company or is reasonably likely its subsidiaries, to lead merge or consolidate with the Company or its subsidiaries, or to otherwise acquire any Takeover Proposalsignificant portion of the assets of the Company and its subsidiaries, taken as a whole, except for acquisitions solely of inventory in the ordinary course of business (a "Third Party Acquisition Offer"), or (ii) enter into any agreement with respect except to any Takeover Proposalthe extent otherwise required by their fiduciary obligations under applicable law, or (iii) in based upon the event advice of an unsolicited written Takeover Proposal for outside counsel to the Company Company, engage in negotiations or discussions concerning a Third Party Acquisition Offer or the business or assets of the Company or its subsidiaries with, or provide disclose financial information relating to the Company or its subsidiaries, or any confidential or proprietary trade or business information relating to the business of the Company or data its subsidiaries to, or afford access to the properties, books or records of the Company or its subsidiaries to, any Person (other than Parentthird party that may be considering a Third Party Acquisition Offer; provided, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; PROVIDED HOWEVERhowever, that nothing contained in this Section 5.3 if the officers or any other provision hereof shall prohibit directors of the Company or the Company's Board from (i) taking and disclosing to the Company's stockholders or position with respect to tender or exchange offer shall be required by a third party pursuant to Rules 14D-9 and 14e2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board after receiving advice from outside counsel, is required their fiduciary obligations under applicable law. (b) Notwithstanding , based upon the foregoing, prior to the acceptance advice of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (y) in the opinion of the Board of Directors of the Company, only after receipt of advice from outside legal counsel to the Company, the failure to provide enter into any such negotiations or discussions, disclose any such information or afford any such access or to engage in such discussions or negotiations would create a reasonable possibility of a breach of the fiduciary duties of the Board of Directors to the Company's shareholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days following receipt of a Superior Proposal notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material nonpublic information regarding third party, the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to may do so only if (which notification shall include the identity of the bidder and the material terms and conditions of the proposalA) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal, PROVIDED that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof. (c) Except as set forth in Section 5.3(b), neither the Board of Directors of the Company nor any committee thereof shall is advised by one or more of its financial advisors that the third party has the financial resources to consummate a Superior Acquisition, as defined in paragraph (ic) withdraw or modifybelow, or propose to withdraw or modify, in a manner adverse to Parent or and the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the OfferCompany determines that the third party is likely to submit a bona fide Third Party Acquisition Offer to consummate a Superior Acquisition; (B) the Company has provided Buyer, this Agreement as soon as reasonably practicable and in any event prior to such discussions, negotiations, disclosure or access, notice of the Merger, (ii) approve or recommend or propose Company's intent to approve or recommend, any Acquisition Proposal or (iii) enter into such discussions or negotiations, to supply information and/or to provide access, the identity of such third party and, as soon as reasonably practicable after such terms are known by the Company, the terms of the Third Party Acquisition Offer; and (C) such third party has signed and delivered to the Company a confidentiality agreement substantially in the form of the Confidentiality Agreement referred to in Section 2.12. The Company will immediately cease or cause to be terminated any agreement existing activities, discussions or negotiations with any parties conducted with respect to any Takeover Proposal. ARTICLE VIof the foregoing.