Common use of No Solicitation by the Company Clause in Contracts

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.035.02), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time The Company shall not nor shall it authorize or earlier termination of this Agreement, neither the Company nor permit any of its Subsidiaries nor Subsidiaries, any of the officersits or their respective directors, directors officers or employees of or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by the Company or its Subsidiaries shallany Subsidiary in connection with the transactions contemplated by this Agreement (collectively, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“"Representatives”") not to, directly or indirectly: indirectly through another person, (i) solicit, initiate, encourage or induce any inquiry with respect tocause, knowingly encourage, or the makingknowingly facilitate, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may is reasonably be expected likely to lead to, to a Company Acquisition Takeover Proposal or (except to disclose the existence ii) other than solely informing persons of the provisions contained in this Section 5.02, participate in any discussions or negotiations regarding any Company Takeover Proposal, or furnish to any person any information in connection with, or in furtherance, of any Company Takeover Proposal. Without limiting the foregoing, it is agreed 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 a breach of this Section 6.03), or (iii5.02(a) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposalby the Company. The Company shall, and shall cause its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause instruct its Representatives to, immediately cease and cause to cease, any and be terminated all existing discussions or negotiations with a Person any person previously conducted with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining such Company Stockholder Approval), in response to an unsolicited bona fide written Company Takeover Proposal made after the date hereof that the Company Board determines in good faith (after receiving the advice of a financial advisor of nationally recognized reputation (the Parent acknowledges and agrees that each of the financial advisors engaged by the Company in connection with entering into this Agreement satisfy this requirement) and outside counsel) constitutes or is reasonably likely to constitute a Company Acquisition Superior Proposal. To the extent not already requested, the Company shall as soon as practicable demand may if the Company Board determines in good faith (after receiving the advice of its outside counsel) that each Person which has within there is a reasonable probability that failure to take such action would result in the 12 months prior Company Board breaching its fiduciary duties to the date stockholders of this Agreement executed the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent prompt written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (other than the ninth paragraph thereto), provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrent with the Company time it is provided or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect made available to such Person’s consideration of a possible person, as the case may be, and (B) participate in discussions or negotiations with the person making such Company Acquisition Transaction to immediately return or destroy Takeover Proposal (which destruction shall be certified in writing by and its Representatives) regarding such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their RepresentativesTakeover Proposal.

No Solicitation by the Company. (a) After Until the date hereof and prior to earlier of the Effective Time or earlier the date of termination of this Agreement, neither the Company Company, Target OP, nor any of its Subsidiaries their subsidiaries, nor any of the officers, officers or directors or employees of the Company Company, Target OP, or its Subsidiaries any of their subsidiaries shall, and the Company shall instruct and use its commercially reasonable best efforts to cause its its, Target OP's and its Subsidiaries’ attorneystheir subsidiaries' agents, accountantsemployees, representatives and affiliates (including any investment bankersbanker, financial advisorsattorney or accountant retained by it, agents and other representatives (“Representatives”Target OP or any of their subsidiaries) not to, directly or indirectly: , (i) solicit, initiate, encourage solicit or induce initiate any inquiry with respect toinquiries or expressions of interest regarding, or the makingmaking of any offer or proposal which reasonably could be expected to lead to, the receipt or submission or announcement of, of a Company Acquisition ProposalTakeover Proposal (as defined herein), (ii) participate in any discussions or negotiations regardingprovide any confidential or material non-public information, data or furnish assistance to any Person person relating to any nonpublic information with respect toCompany Takeover Proposal, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) except as otherwise permitted hereunder, enter into any letter agreement regarding any Company Takeover Proposal, (iv) except as otherwise permitted hereunder, make or authorize any statement, recommendation or solicitation in support of intent or expressing neutrality in respect of any Company Takeover Proposal or (v) grant any waiver or release under any "standstill" or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months agreement entered into prior to the date of this Agreement executed a confidentiality agreement with Agreement; provided, however, that prior to the Effective Time, the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified permitted to (A) engage in writing by such Person to the Company) all confidential information heretofore furnished discussions with any person who seeks (without any solicitation by the Company or its directors, officers, Employees, advisors, agents or representatives in violation of this Section 4.3) to initiate discussions relating to a Company Takeover Proposal, and (B) subject to receipt by the Company of an executed confidentiality agreement from such person containing customary terms for and conditions relative to transactions of such nature, furnish such person information concerning the Company and its subsidiaries, if and only to the extent that prior to furnishing any such information to, or entering into discussions with, any such person, (1) the Board of Directors of the Company determines in its good faith, after consultation with outside legal counsel, that engaging in such discussions or providing such information is consistent with the fiduciary duties of the Company's Board of Directors under applicable law, (2) the Company's Board of Directors concludes in its good faith, after consultation with its outside legal counsel and the Company Financial Advisor (or an independent financial advisor of nationally recognized reputation), that there is a reasonable likelihood that such actions would lead reasonably promptly to the receipt or submission of a Company Superior Proposal and (3) the Company provides prior written notice to Parent of its Affiliates intention to take such action. Upon the execution of this Agreement, the Company, Target OP, their subsidiaries and their representatives immediately shall cease and cause to be terminated all existing activities, discussions, inquiries, investigations or Subsidiaries negotiations with all parties (other than Parent, Acquiror OP, REIT Merger Sub and their respective directors, officers, agents, representatives and advisors) with respect to any Company Takeover Proposal or any of its or their Representatives proposed transaction which could lead to such Person or any of its Affiliates or Subsidiaries or any of its or their Representativesa Company Takeover Proposal.

No Solicitation by the Company. (a) After Subject to Section 5.02(h): From and after the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier termination of the date, if any, on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to not, and shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ attorneysand their respective directors, accountantsofficers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents and other or representatives (collectively “Representatives”) not to, directly or indirectly: (i) solicit, initiate, knowingly facilitate or knowingly encourage or induce any inquiry with respect to, or the making, submission or announcement of, a making of any Company Acquisition Competing Proposal, (ii) participate in any discussions or negotiations regarding, or knowingly furnish to any Person person any material nonpublic information in furtherance of (excluding, for the avoidance of doubt, information furnished to a current or prospective commercial counterparty (including any customer or supplier) of the Company or any of its Subsidiaries for the sole purpose of furthering an existing or prospective commercial arrangement with respect tosuch person and, or take in any other action to facilitate any inquiries or the making event, not in contemplation of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to agreement regarding a Company Acquisition Competing Proposal. The Company shall, and shall cause its Affiliates and its Subsidiaries Representatives to, immediately cease and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any person conducted heretofore with respect to a any Company Acquisition Proposal. To Competing Proposal and promptly request the extent not already requestedprompt return or destruction of all confidential information previously furnished, and the Company shall as soon as practicable demand that each Person which has within take all reasonably necessary actions to secure its rights and ensure the 12 months prior to the date performance of this Agreement executed a any such person’s obligations under any applicable confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (which destruction other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.02, and any violation of the restrictions contained in this Section 5.02 by its Board of Directors (including any committee thereof) or its Representatives shall be certified in writing deemed to be a breach of this Section 5.02 by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this AgreementThe Company will not, neither the Company nor will it permit any of its Subsidiaries to, nor will it authorize or permit any of the its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: indirectly through another Person, (i) solicit, initiate, initiate or encourage or induce any inquiry with respect to(including by way of furnishing information), or take any other action designed to facilitate, any inquiries or the making, submission making of any proposal which constitutes any Company Takeover Proposal or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regardingregarding any Company Takeover Proposal; provided, however, that if, at any time prior to the Offer Completion Date, the Company Board determines in good faith, after consultation with its financial advisor and outside counsel, that failure to do so would create a reasonable possibility of a breach of its fiduciary duties to the Company's shareholders under applicable Law, the Company may, in response to a Company Takeover Proposal which was not solicited by it or which did not otherwise result from a breach of this Section 5.02(a), (A) furnish information with respect to the Company and each of its Subsidiaries to any Person pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) and (B) participate in negotiations regarding such Company Takeover Proposal. For purposes of this Agreement, "Company Takeover Proposal" means any nonpublic information with respect toinquiry, proposal or take offer from any other action Person relating to facilitate any inquiries direct or the making indirect acquisition or purchase of any proposal that constitutes 20% or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence more of the provisions assets of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The the Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, or 20% or more of any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date class of this Agreement executed a confidentiality agreement with equity securities of the Company or any of its Affiliates Subsidiaries, any tender offer or Subsidiaries exchange offer that if consummated would result in any Person beneficially owning 20% or more of any class of its or their Representatives with respect to such Person’s consideration equity securities of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates Subsidiaries, or Subsidiaries any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their RepresentativesSubsidiaries, other than the transactions contemplated by this Agreement.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time The Company shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or earlier termination knowingly permit any officer, director or employee of this Agreementor any investment banker, neither the Company nor any of its Subsidiaries nor any of the officersattorney, directors accountant or employees of other advisor or representative of, the Company or its Subsidiaries shall, and the any Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not Subsidiary to, directly or indirectly: (i) solicit, initiate, initiate or knowingly encourage or induce the submission of any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Takeover Proposal, (ii) participate in enter into any discussions or negotiations regarding, or furnish agreement with respect to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Takeover Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into provide any letter non-public information regarding the Company to any third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that prior to receipt of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating the Company Shareholder Approval, the Company may, in response to a Company Acquisition Takeover Proposal that was not solicited by the Company, provide any non-public information regarding itself to any third party or engage in any negotiations or substantive discussions with such person regarding any Company Takeover Proposal, in each case only if the Company's Board of Directors determines in good faith, after consultation with counsel and its financial advisors, that such actions could result in a Company Superior Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date For purposes of this Agreement executed Agreement, "Company Takeover Proposal" means (i) any proposal or offer for a confidentiality agreement with merger, consolidation or other business combination involving the Company or any Company Significant Subsidiary, (ii) any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of its Affiliates the outstanding Company Common Shares or (iii) any proposal or offer to acquire in any manner, directly or indirectly, assets of the Company or the Company Subsidiaries representing more than 20% of the consolidated assets of the Company, other than the transactions contemplated by this Agreement. The Company shall, and shall cause each Company Subsidiary to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company, any Company Subsidiary or any officer, director or employee of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return investment banker, attorney, accountant or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by other advisor or representative of, the Company or any of its Affiliates or Subsidiaries or Company Subsidiary, with any parties conducted heretofore with respect to any of its or their Representatives to such Person or the foregoing. For purposes of this Agreement, a "Company Significant Subsidiary" means any Company Subsidiary that constitutes a "significant subsidiary" of its Affiliates or Subsidiaries or any the Company within the meaning of its or their RepresentativesRule 1-02 of Regulation S-X of the SEC.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, The Company agrees that neither the Company it nor any of its Subsidiaries nor any of the officersits and their respective directors, directors officers or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) Representatives not to, directly or indirectly: indirectly through another person, (i) solicit, initiate, encourage knowingly initiate or induce any inquiry with respect toknowingly encourage, or knowingly facilitate, any Takeover Proposal or the making, submission making or announcement of, a Company Acquisition Proposalconsummation thereof, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person person any nonpublic information in connection with, or enter into any agreement with respect to, any Takeover Proposal, (iii) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any person (other than Parent) with respect to the Company or any of its Subsidiaries, (iv) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of make the provisions of this any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 6.03203 of the DGCL), or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation or bylaws, inapplicable to any transactions contemplated by a Takeover Proposal (iii) enter into and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any letter of intent or similar document waiver that may have been heretofore granted, to any person other than Parent or any Contract of Parent’s Affiliates, under any such provisions) or (whether binding v) authorize any of, or notcommit or agree to do any of the foregoing. Without limiting the foregoing, it is agreed 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 a breach of this Section 4.02(a) contemplating or otherwise relating to a Company Acquisition Proposalby the Company. The Company shall, and shall cause its Subsidiaries and its and their officersRepresentatives to, directors immediately cease and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company Acquisition (acting through the Special Committee, if then in existence) determines in good faith (after consultation with its outside legal advisors and a financial advisor of nationally recognized reputation) constitutes or could reasonably be expected to lead to a Superior Proposal. To , and which Takeover Proposal was not solicited after the extent date hereof in violation of this Section 4.02(a) and was made after the date hereof and did not already requestedotherwise result from a breach of this Section 4.02(a), the Company shall as soon as practicable demand that each Person which has within the 12 months prior may, subject to the date of compliance with this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives Section 4.02, (x) furnish information with respect to such Person’s consideration of a possible the Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person and its Subsidiaries to the Companyperson making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such person than the provisions of the Confidentiality Agreement (excluding paragraphs 6 and 7 of the Confidentiality Agreement), provided that all confidential such information heretofore furnished by has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal, if and only to the extent that in connection with the foregoing clauses (x) and (y), the Board of Directors of the Company or any of (acting through the Special Committee, if then in existence) concludes in good faith (after consultation with its Affiliates or Subsidiaries or any of outside legal advisors) that failure to take such action would reasonably be expected to be inconsistent with its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representativesfiduciary duties under applicable Law.

No Solicitation by the Company. (ai) After From the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier and the termination of this AgreementAgreement in accordance with Section 7.1, neither except as provided in this Section 5.2(a), the Company nor shall not, and shall not permit or authorize any of its Subsidiaries nor or any of the officersdirector, directors officer, employee, investment banker, financial advisor, attorney, accountant or employees other advisor, agent or representative (collectively, “Representatives”) of the Company or any of its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: , (iA) solicit, initiate, endorse, knowingly encourage or induce knowingly facilitate any inquiry with respect toinquiry, proposal or offer that constitutes, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, a Company Acquisition Proposal Proposal, (except to disclose the existence of the provisions of this Section 6.03), or (iiiB) enter into or participate in any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a with, or furnish any non-public information or data to, any Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company (other than Parent or any of its Affiliates or Subsidiaries or any of their respective Representatives) that is reasonably likely to be considering or seeking to make a Company Acquisition Proposal, in each case relating to, or as would reasonably be expected to lead to, a Company Acquisition Proposal, or (C) agree or propose to do any of the foregoing. The Company shall, and shall cause each of its or their Subsidiaries and the Representatives of the Company and its Subsidiaries to, (1) immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person’s consideration of a possible Company Acquisition Transaction to immediately , (2) request the prompt return or destroy (which destruction shall be certified in writing by such Person to the Company) of all confidential information heretofore previously furnished by the with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal, and (3) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its Affiliates or Subsidiaries Representatives is a party with respect to any Company Acquisition Proposal or potential Company Acquisition Proposal, and shall use commercially reasonable efforts to enforce the provisions of any of such agreement, which shall include seeking any injunctive relief available to enforce such agreement (provided, that the Company shall be permitted to grant waivers of, and not enforce, any standstill agreement, but solely to the extent that the Company Board has determined in good faith, after consultation with its outside counsel, that failure to take such action (I) would prohibit or their Representatives delay the counterparty from making an unsolicited Company Acquisition Proposal to such Person or any of the Company Board in compliance with this Section 5.2(a) and (II) would be reasonably likely to be inconsistent with its Affiliates or Subsidiaries or any of its or their Representativesfiduciary duties under applicable Law).

No Solicitation by the Company. (a) After Subject to Section 7.11(b), the Company agrees that from and after the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than Parent or its Affiliates) regarding any Company Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Company Alternative Proposal within the last twelve (12) months return to the Company nor any of its Subsidiaries nor any of the officers, directors or employees destroy all confidential information heretofore furnished to such Person by or on behalf of the Company and Company Subsidiaries and (iii) not grant any waiver or its Subsidiaries shallrelease under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof in respect of a proposed Company Alternative Proposal (such agreement, a “Company Standstill Agreement”) unless the Board of the Company concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the directors’ fiduciary obligations to the Company’s stockholders under applicable Law. From and after the date of this Agreement, subject to Section 7.11(b) and Section 9.3(b), the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not tonot, directly or indirectly: , nor shall the Company authorize or permit any Company Subsidiary or any of its or their respective directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors (a “Representative”) to, (i) solicit, initiate, initiate or knowingly encourage or induce facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry with respect toinquiry, proposal or offer, or the making, submission or announcement ofof any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Acquisition Alternative Proposal, (ii) participate in any discussions except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.11(b) or negotiations regarding, a definitive agreement entered into or furnish to any Person any nonpublic information be entered into concurrently with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions termination of this Agreement by the Company pursuant to Section 6.039.3(b), approve or (iii) enter into any a letter of intent intent, memorandum of understanding or similar document or other contract with any Contract (whether binding or not) contemplating Person, other than Parent and Merger Sub, for, constituting or otherwise relating to a Company Acquisition Alternative Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts (iii) provide or cause to cause its Representatives be provided any information or data relating to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any Company Subsidiary in connection with, or in response to, any Company Alternative Proposal by any Person, or (iv) terminate, amend, waive or permit the waiver of its Affiliates any voting restriction contained in the organizational or Subsidiaries or any governing documents of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company, or take any action contemplated by paragraph (a)(1) all confidential information heretofore furnished of Section 203 of the DGCL. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any officer, director or financial advisor of the Company takes any action that if taken by the Company would be a breach of this Section 7.11, the taking of such action by such officer, director or any financial advisor shall be deemed to constitute a breach of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representativesthis Section 7.11 by the Company.

No Solicitation by the Company. (a) After From and after the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier termination of the date, if any, on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to not, and shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ attorneysand their respective directors, accountantsofficers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents and other or representatives (collectively “Representatives”) not to, directly or indirectly: (i) solicit, initiate, knowingly facilitate or knowingly encourage or induce any inquiry with respect to, or the making, submission or announcement of, a making of any Company Acquisition Competing Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person person any material nonpublic information in furtherance of (excluding, for the avoidance of doubt, information furnished to a current or prospective commercial counterparty (including any customer or supplier) of the Company or any of its Subsidiaries for the sole purpose of furthering an existing or prospective commercial arrangement with respect tosuch person and, or take in any other action to facilitate any inquiries or the making event, not in contemplation of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to agreement regarding a Company Acquisition Competing Proposal. The Company shall, and shall cause its Affiliates and its Subsidiaries Representatives to, immediately cease and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any person conducted heretofore with respect to a any Company Acquisition Proposal. To Competing Proposal and promptly request the extent not already requestedprompt return or destruction of all confidential information previously furnished, and the Company shall as soon as practicable demand that each Person which has within take all reasonably necessary actions to secure its rights and ensure the 12 months prior to the date performance of this Agreement executed a any such person’s obligations under any applicable confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (which destruction other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its Board of Directors (including any committee thereof) or its Representatives shall be certified in writing deemed to be a breach of this Section 5.03 by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After From and after the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier termination of the date, if any, on which this Agreement is terminated pursuant to Section 8.01, and except as otherwise provided for in this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to not, and shall cause its Affiliates not to and shall not authorize or permit its Subsidiaries’ attorneysand their respective directors, accountantsofficers, employees, investment bankers, financial advisors, attorneys, accountants or other advisors, agents and other or representatives (collectively “Representatives”) not to, directly or indirectly: (i) solicit, initiate, knowingly facilitate or knowingly encourage or induce any inquiry with respect to, or the making, submission or announcement of, a making of any Company Acquisition Competing Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person person any material nonpublic information in furtherance of (excluding, for the avoidance of doubt, information furnished to a current or prospective commercial counterparty (including any customer or supplier) of the Company or any of its Subsidiaries for the sole purpose of furthering an existing or prospective commercial arrangement with respect tosuch person and, or take in 49 any other action to facilitate any inquiries or the making event, not in contemplation of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03Competing Proposal), any Company Competing Proposal or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to agreement regarding a Company Acquisition Competing Proposal. The Company shall, and shall cause its Affiliates and its Subsidiaries Representatives to, immediately cease and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any person conducted heretofore with respect to a any Company Acquisition Proposal. To Competing Proposal and promptly request the extent not already requestedprompt return or destruction of all confidential information previously furnished, and the Company shall as soon as practicable demand that each Person which has within take all reasonably necessary actions to secure its rights and ensure the 12 months prior to the date performance of this Agreement executed a any such person’s obligations under any applicable confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy such information. The Company shall take all actions necessary to enforce its rights under the provisions of any “standstill” agreement between the Company and any person (which destruction other than Parent), and shall not grant any waiver of, or agree to any amendment or modification to, any such agreement, to permit such person to submit a Company Competing Proposal. The Company shall ensure that its Representatives are aware of the provisions of this Section 5.03, and any violation of the restrictions contained in this Section 5.03 by its Board of Directors (including any committee thereof) or its Representatives shall be certified in writing deemed to be a breach of this Section 5.03 by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After From the date hereof and prior to of this Agreement until the East/Toucan Effective Time or earlier or, if earlier, the termination of this AgreementAgreement in accordance with its terms, neither the Company shall not, nor shall it authorize or permit any of its Subsidiaries nor Affiliates or any of the officersits or their respective directors, directors officers or employees or any of the Company its or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneystheir respective investment bankers, accountants, investment bankers, financial attorneys or other advisors, agents and other or representatives (collectively, “Representatives”) not to, directly or indirectly: (i) solicit, directly or indirectly solicit or initiate, encourage or knowingly encourage, induce or facilitate, any Company Acquisition Transaction or any inquiry with respect to, or the making, submission or announcement of, proposal that may reasonably be expected to lead to a Company Acquisition ProposalTransaction, or (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any nonpublic information with respect to, or take cooperate in any other action to facilitate way with any inquiries Person (whether or the not a Person making of a Company Acquisition Transaction) with respect to, any Company Acquisition Transaction or any inquiry or proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition ProposalTransaction. The Company shall, and shall instruct its Affiliates and its Subsidiaries and their officersrespective Representatives to, directors immediately cease and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a any Person (other than Parent and its Representatives) conducted heretofore with respect to any Company Acquisition Transaction or any inquiry or proposal that may reasonably be expected to lead to a Company Acquisition ProposalTransaction, and request the prompt return or destruction of all confidential information previously furnished to any such Person or its Representatives, and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives, in connection with any actual or potential proposal by such Person to acquire the Company. To Without limiting the extent not already requestedforegoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration shall constitute a breach of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing this Section 5.02(a) by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After From the date hereof and prior to until the Effective Time or earlier Closing Date or, if earlier, the termination of this AgreementAgreement in accordance with Article VIII, neither the Company nor any of and its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shallshall not, and the Company shall instruct and use its reasonable best efforts to cause its and their representatives acting on its Subsidiaries’ attorneysand their behalf, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: to (i) solicit, initiate, encourage initiate or induce continue any inquiry negotiations with any Person with respect to, or provide any non-public information or data concerning the makingCompany or any of the Company’s Subsidiaries to any Person relating to, submission an Acquisition Proposal or announcement ofafford (or continue to afford) to any Person access to the business, a properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (ii) participate in enter into any discussions acquisition agreement, merger agreement or negotiations regardingsimilar definitive agreement, or furnish to any Person any nonpublic information with respect toletter of intent, memorandum of understanding or agreement in principle, or take any other action agreement relating to facilitate an Acquisition Proposal, (iii) grant any inquiries waiver, amendment or release under any confidentiality agreement or the making anti-takeover laws of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03)state, or (iiiiv) enter into otherwise knowingly facilitate any letter of intent such inquiries, proposals, discussions, or similar document negotiations or any Contract (whether binding effort or not) contemplating or otherwise relating attempt by any Person to a Company make an Acquisition Proposal. The Notwithstanding anything to the contrary in this Agreement, the Company and its Subsidiaries and their officersrespective representatives shall not be restricted pursuant to the foregoing sentence with respect to any actions explicitly contemplated this Agreement (including the PIPE Investment) or the Ancillary Agreements. From and after the date hereof, the Company shall, and shall instruct its officers and directors and employees will immediately ceaseto, and the Company shall use reasonable best efforts to instruct and cause its Representatives to ceaserepresentatives acting on its behalf, any its Subsidiaries and their respective representatives (acting on their behalf) to, immediately cease and terminate all existing discussions or and negotiations with a Person any Persons that may be ongoing with respect to a Company an Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement Proposal (other than with the Company or any of Parent and its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representativesrepresentatives).

No Solicitation by the Company. (a) After From the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier the termination of this AgreementAgreement pursuant to Section 9.01, the Company agrees that neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date officers of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished retained by the Company or any of its Affiliates Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information or assistance) any Acquisition Proposal or any inquiries that may reasonably be expected to lead to an Acquisition Proposal. The Company further agrees that neither the Company nor any of its Subsidiaries nor any of the directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or their Representatives to such Person retained by the Company or any of its Affiliates Subsidiaries not to, directly or Subsidiaries indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall AGREEMENT AND PLAN OF MERGER -33- have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated 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 their Representativesoffers. 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 Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to terminate this Agreement (except as specifically provided in Article IX).

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time The Company shall not, directly or earlier termination of this Agreementindirectly, neither the Company nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of the officersits directors, directors officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of the Company or its Subsidiaries shall(collectively, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) , solicit, initiate, initiate or encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any including by means of furnishing nonpublic information with respect toinformation), or take any other action to facilitate facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to its shareholders) that constitutes constitutes, or may reasonably be expected likely to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03)any Takeover Proposal, or (iii) enter into or maintain or continue discussions or negotiate with any letter Person in furtherance of intent such inquiries or similar document to obtain a Takeover Proposal, or agree to or endorse any Contract Takeover Proposal, or authorize or permit any of its Representatives to take any such action (whether binding or notother than confidentiality and “standstill” agreements required pursuant to subclause (iv) contemplating or otherwise relating to a Company Acquisition Proposalbelow). The Company and its Subsidiaries and their officersshall promptly (but in no event later than 24 hours) notify Parent if any proposal or offer, directors and employees will immediately ceaseor any inquiry or contact with any Person with respect thereto, regarding a Takeover Proposal is made, and shall promptly (but in no event later than 24 hours) inform Parent as to the material details of any such proposal, offer, inquiry or contact, including the identity of the party making any such proposal, offer, inquiry or contact, and, if in writing, promptly deliver or cause to be delivered to Parent a copy of such proposal, offer, inquiry or contact and any other written material reasonably relating thereto. The Company immediately shall use reasonable best efforts cease and cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any parties conducted heretofore with respect to a Company Acquisition Takeover Proposal. To The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Notwithstanding anything to the extent not already requestedcontrary in this Section 5.5, the Company shall as soon as practicable demand that each Person which has within Company's Board of Directors may take the 12 months prior to the date of actions described above in this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives Section 5.5 with respect to such Person’s consideration of a possible Company Person who has made a written, bona fide proposal or offer that was not solicited after January 16, 2004 regarding an Acquisition Transaction if the Company's Board of Directors has (i) determined in good faith, after consultation with its financial and legal advisors that such proposal is, or could reasonably be likely to immediately return or destroy lead to the delivery of, a Superior Proposal (which destruction shall be certified as defined below), (ii) determined in writing by good faith, after consultation with its outside legal counsel, that, in light of such Superior Proposal, the taking of the actions described in this Section 5.5(a) is required to comply with its fiduciary obligations to the Company under applicable law, (iii) provided written notice to the Parent of its intent to take the actions described in this Section 5.5(a) at least two Business Days prior to taking any such action and (iv) obtained from such Person an executed confidentiality agreement and standstill agreement on terms no less favorable to the CompanyCompany than those contained in the Confidentiality Agreement and the letter agreement dated January 16, 2004; provided, however, that none of the actions described in this Section 5.5(a) all confidential information heretofore furnished by may be taken in the event that the Company has taken any actions in breach of this Section 5.5(a); provided further, that the Company's Board of Directors may furnish to the Person who has made the Superior Proposal only (i) such information that has been previously provided to the Parent or (ii) to the extent such information previously provided to the Parent has changed or been updated, such changed or updated information, provided that such changed or updated information is provided simultaneously to the Parent, and the Company's board of directors shall keep the Parent promptly and reasonably informed as to the status of any of its Affiliates or Subsidiaries or any of its or their Representatives to discussions regarding such Person or any of its Affiliates or Subsidiaries or any of its or their RepresentativesSuperior Proposal.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time The Company shall not, nor shall it authorize or earlier termination permit any of this Agreementits Subsidiaries, neither the Company nor any of their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it or any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not controlled Affiliates to, directly or indirectly: (i) solicit, initiate, encourage facilitate or induce any inquiry with respect toknowingly encourage, directly or indirectly, the making, submission or announcement of, initiation of a Company Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Company Proposal, or agree to approve or endorse any Company Proposal or enter into any agreement, arrangement or understanding that to the Knowledge of the Company would require the Company to abandon, terminate or fail to consummate the Merger, (iii) initiate or participate in any discussions or negotiations regardingwith, or furnish to or disclose any information to, any Person (other than Parent or Merger Sub or any nonpublic information of their representatives) in connection with respect to, any Company Proposal or take (iv) facilitate or further in any other action to facilitate manner any inquiries or the making or submission of any proposal that constitutes constitutes, or may reasonably be expected to lead to, a any Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company shall, and shall cause its Subsidiaries to, immediately cease and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts cause to cause its Representatives to cease, any and be terminated all existing discussions or negotiations with a Person any person conducted heretofore with respect to any Company Proposal. The Company shall not participate, directly or indirectly, in any negotiations regarding, or furnish to any other Person, any information with respect to, or otherwise cooperate in any way with, or assist, any effort or attempt by any other person to do or seek any of the activities prohibited by in this section. Should the Company receive any proposal, inquiry or contact with respect to a Company Acquisition ProposalProposal or any of the other activities prohibited by this section, it will as promptly as practicable, and in any event within two Business Days, give written notice thereof to Parent and also shall provide Parent with such information regarding such proposal, inquiry or contact as Parent reasonably may request. To the extent not already requested, the The Company shall as soon as practicable demand that each Person which has within be liable for any action taken by any of its Subsidiaries or any of the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company Company’s or its Subsidiaries’ respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it or any of its Affiliates or Subsidiaries or any controlled Affiliates, in violation of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representativesthis Section 6.02.

No Solicitation by the Company. (a) After Until the date hereof and prior to earlier of the Effective Time or earlier the date of termination of this AgreementAgreement pursuant to the provisions of Section 8.1 hereof, neither the Company will not (nor any of its Subsidiaries nor will the Company permit any of the Company's officers, directors or employees of the Company or its Subsidiaries shalldirectors, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ stockholders, attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”agents, representatives, Affiliates or Associates to) not to, directly or indirectly, take any of the following actions with any Person other than Parent and its designees: (ia) solicit, initiate, encourage or induce any inquiry with respect toentertain, review, or the making, submission encourage any proposals or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regardingoffers from, or furnish to conduct discussions with or engage in negotiations with, any Person any nonpublic information with respect to, or take any other action relating to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document an investment in or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement possible Business Combination with the Company or any of its Affiliates Subsidiaries (whether such Subsidiaries are in existence on the date hereof or Subsidiaries or any of its or their Representatives are hereafter organized), (b) provide information with respect to such the Company to any Person’s consideration of a possible Company Acquisition Transaction to immediately return , other than Parent, relating to, or destroy (which destruction shall be certified in writing otherwise cooperate with, facilitate or encourage any effort or attempt by any such Person to with regard to, any possible investment in or any Business Combination with the CompanyCompany or any Subsidiaries (whether such Subsidiaries are in existence on the date hereof or are hereafter organized), (c) all confidential information heretofore furnished by enter into any contract, arrangement or understanding with any Person, other than Parent, looking toward an investment in or any Business Combination with the Company or any of its Affiliates Subsidiaries (whether such Subsidiaries are in existence on the date hereof or Subsidiaries are hereafter organized), or (d) make or authorize any statement, recommendation or solicitation in support of any possible investment in or Business Combination involving the Company or any of its Subsidiaries (whether such Subsidiaries are in existence on the date hereof or their Representatives are hereafter organized) other than the Business Combination with Parent contemplated by this Agreement. The Company shall immediately cease and cause to be terminated any such contacts or negotiations with any Person relating to any such transaction or Business Combination. In addition to the foregoing, if the Company receives prior to the Effective Time or the termination of this Agreement any offer or proposal (formal or informal) relating to any of the above, the Company shall immediately notify Parent thereof and provide Parent with the details thereof including the identity of the Person or Persons making such offer or proposal, and copies of any written communication relating thereto and will keep Parent fully informed of its Affiliates the status and details of any such offer of proposal. Each of the Company and Parent acknowledge that this Section 4.2 was a significant inducement for Parent to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the merger consideration to be paid to the stockholders of the Company or Subsidiaries or any of its or their Representatives(ii) a failure to induce Parent to enter into this Agreement.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ ' attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“"Representatives”") not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s 's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After The Company agrees that, following the date hereof of this Agreement and prior to the earlier of the Effective Time or earlier termination of this Agreementthe Termination Date, neither the Company it nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries Subsidiary shall, and the Company that it shall use reasonable best efforts to cause its and its Subsidiaries’ attorneysthe Company’s and each Company Subsidiary’s officers, accountantsdirectors, investment bankersemployees, financial advisors, advisors and agents and other representatives (“Representatives”) not to, directly or indirectly: , (i) knowingly solicit, initiate, initiate or encourage or induce any inquiry with respect to, or the making, submission proposal that constitutes or announcement of, could reasonably be expected to lead to a Company Acquisition Proposal, (ii) participate provide any non-public information or data to any Person relating to or in connection with a Company Acquisition Proposal, engage in any discussions or negotiations regardingconcerning a 69 Company Acquisition Proposal, or furnish otherwise knowingly facilitate any effort or attempt to make or implement a Company Acquisition Proposal, (iii) approve, recommend, agree to or accept, or propose publicly to approve, recommend, agree to or accept, any Company Acquisition Proposal, or (iv) approve, recommend, agree to or accept, or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Person Company Acquisition Proposal. Without limiting the foregoing, any nonpublic information violation of the restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or any of the Company’s or the Company Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by the Company or the Company Subsidiaries) shall be a breach of this Section 8.12(a) by the Company. 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, or take to any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of transactions contemplated by this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their RepresentativesAgreement).

No Solicitation by the Company. (a) After From the date hereof and prior to of this Agreement until the earlier of the Effective Time or earlier the termination of this AgreementAgreement pursuant to Section 9.01, the Company agrees that neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date officers of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished retained by the Company or any of its Affiliates Subsidiaries not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information or assistance) any Acquisition Proposal or any inquiries that may reasonably be expected to lead to an Acquisition Proposal. The Company further agrees that neither the Company nor any of its Subsidiaries nor any of the directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or their Representatives to such Person retained by the Company or any of its Affiliates Subsidiaries not to, directly or Subsidiaries indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), to the extent applicable, to comply, with regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (B) in response AGREEMENT AND PLAN OF MERGER to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the Required Company Vote shall not have been theretofore obtained, (ii) the Board of Directors of the Company shall have concluded in good faith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel that such action is necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable Law and (iv) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors shall have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated 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 their Representativesoffers. 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 Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to terminate this Agreement (except as specifically provided in Article IX).

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“Representatives”) not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.035.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.

No Solicitation by the Company. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, neither the Company nor any of its Subsidiaries nor any of the officers, directors or employees of the Company or its Subsidiaries shall, and the Company shall use reasonable best efforts to cause its and its Subsidiaries’ ' attorneys, accountants, investment bankers, financial advisors, agents and other representatives (“"Representatives”") not to, directly or indirectly: (i) solicit, initiate, encourage or induce any inquiry with respect to, or the making, submission or announcement of, a Company Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Company Acquisition Proposal (except to disclose the existence of the provisions of this Section 6.035.03), or (iii) enter into any letter of intent or similar document or any Contract (whether binding or not) contemplating or otherwise relating to a Company Acquisition Proposal. The Company and its Subsidiaries and their officers, directors and employees will immediately cease, and the Company shall use reasonable best efforts to cause its Representatives to cease, any and all existing discussions or negotiations with a Person with respect to a Company Acquisition Proposal. To the extent not already requested, the The Company shall as soon as practicable demand that each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives with respect to such Person’s 's consideration of a possible Company Acquisition Transaction to immediately return or destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Affiliates or Subsidiaries or any of its or their Representatives to such Person or any of its Affiliates or Subsidiaries or any of its or their Representatives.