Common use of No Solicitation, Etc Clause in Contracts

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company shall not (and it will use its reasonable best efforts to not permit any of its officers, directors, employees, investment bankers, counsel, auditors, consultants and other agents, affiliates or advisors to) directly or indirectly (i) solicit, engage in discussions or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of merger, consolidation, acquisition of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Company, or any material portion of the assets of the Company (an “Alternative Acquisition”), (ii) provide information with respect to the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, (iii) enter into an agreement with any person, other than Parent, providing for a possible Alternative Acquisition, (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parent. Notwithstanding the foregoing, prior to the approval of this Agreement by the holders of shares of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”), the Company may, to the extent required by the fiduciary obligations of the Board, as determined in good faith by a majority of the directors of the Company after consultation with outside counsel, in response to a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made by a person whom the Board determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of making a Superior Proposal (as defined in Section 5.02(e)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposal.

No Solicitation, Etc. (a1) From the date of this Agreement until the earlier of the Effective Time or Until the termination of this Agreement, the Company and its Subsidiaries shall not not, directly or indirectly, whether through any officer, director, employee, representative, agent or advisor (and it will use its reasonable best efforts to not permit including any attorney, accountant, consultants, banker or financial advisor) of the Company or any of its officersSubsidiaries or otherwise, directors, employees, investment bankers, counsel, auditors, consultants and other agents, affiliates or advisors to) directly or indirectly (i) solicit, engage in discussions initiate, encourage or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts initiation of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of inquiries or proposals regarding any merger, consolidationsale of substantial assets, acquisition sale of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock (including without limitation by way of a tender offer), liquidation, recapitalization, consolidation or other business combination involving the Company, Company or its Subsidiaries or acquisition or exchange of any capital stock or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice) of the Company or its Subsidiaries, or any combination of the foregoing or similar transactions involving the Company or any Subsidiaries of the Company other than the Merger (any of the foregoing inquiries or proposals being referred to herein as an “Alternative Acquisition”"Acquisition Proposal"), (ii) engage in negotiations or discussions concerning, or provide or disclose any nonpublic information with respect to the Company to any personPerson relating to, other than Parent, relating to a possible Alternative any Acquisition by any person, other than ParentProposal, (iii) enter into an agreement with any personagreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other than Parenttransactions contemplated hereby, providing for a possible Alternative Acquisition, or (iv) grant agree to, approve or recommend any waiver Acquisition Proposal; provided, however, that nothing contained in this Section 5.2(a) shall prevent the Board of Directors of the Company from considering, negotiating, approving and recommending to the stockholders of the Company a bona fide Acquisition Proposal which is received by the Company after the date and is not solicited in violation of this Agreement, if such a proposal is, in the opinion of the Company's Board of Directors, more favorable to the Company's stockholders than the transactions contemplated by this Agreement, and the Board of Directors of the Company determines in good faith (upon advice of outside legal counsel) that it is required to do so in order not to violate its fiduciary duties. (2) The Company shall promptly notify MergerCo after receipt of any Acquisition Proposal, or release under any standstill modification of or similar agreement with respect amendment to any class of equity securities of Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its SubsidiariesSubsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person or entity that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to MergerCo shall be made in writing, shall identify the offeror and shall indicate whether the Company is providing or intends to provide the Person making the Acquisition Proposal with access to information concerning the Company as provided in Section 5.2(3). The Company shall also furnish to MergerCo a written summary of the material terms and conditions of the Acquisition Proposal. (v3) make or authorize any recommendation or solicitation If the Board of Directors of the Company receives a request for material nonpublic information by a person who makes a bona fide Acquisition Proposal, and the Board of Directors determines in support good faith and upon the advice of any possible Alternative independent counsel that it is required to cause the Company to act as provided in this Section 5.2(c) in order to not violate the directors' fiduciary duties, then, provided the person making the Acquisition by any person, other than by Parent. Notwithstanding the foregoing, prior Proposal has executed a confidentiality agreement substantially similar to the approval of this Agreement by one then in effect between the holders of shares of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”)and MergerCo, the Company may, may provide such person with access to information regarding the extent required by the fiduciary obligations of the Board, as determined in good faith by a majority of the directors of the Company. (4) The Company after consultation with outside counsel, in response to a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made by a person whom the Board determines, in good faith after consultation with outside counsel shall immediately cease and an independent financial advisor, cause to be reasonably capable of making a Superior Proposal terminated any existing discussions or negotiations with any persons (as defined in Section 5.02(e)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a), (xother than MergerCo) furnish information conducted heretofore with respect to any of the foregoing. The Company agrees not to release any such persons from the confidentiality provisions of any confidentiality agreement to which the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to is a confidentiality agreement with terms relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposalparty.

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time Board Transition Date or the termination of this Agreement, the Company shall will not (and it will use its reasonable best efforts to not permit any of its officers, directors, employeesagents, affiliates, investment bankers, counsel, auditors, consultants and other agents, affiliates accountants or advisors attorneys to) directly or indirectly (i) solicit, engage in discussions or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of merger, consolidationpurchase of capital stock, acquisition purchase of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Company, ) or any material portion of the its capital stock or assets of the Company (with any such efforts by any such person, including a firm proposal to make such an “acquisition, to be referred to as an "Alternative Acquisition”"), (ii) provide information with respect to the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, (iii) enter into an agreement with any person, other than Parent, providing for a possible Alternative Acquisition, or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any statement, recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parent. The Company shall and shall cause its representatives to cease immediately and cause to be terminated all activities, discussions and negotiations, if any, conducted prior to the date hereof with respect to any Alternative Acquisition. Notwithstanding anything to the foregoingcontrary contained in Section 6.02 or elsewhere in this Agreement, prior to the approval consummation of this Agreement by the holders of shares of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”)Offer, the Company maymay participate in discussions or negotiations with, and furnish non-public information, and afford access to the extent required by the fiduciary obligations of the Boardproperties, as determined in good faith by a majority of the directors books, records, officers, employees and representatives of the Company after consultation with outside counselto any person, entity or group if such person, entity or group has delivered unsolicited to the Company, prior to the consummation of the Offer, and in response to writing, a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made which is not subject to any financing contingency, which the Board by a person whom majority vote in its good faith judgment (after consultation with its independent financial advisor) determines that such proposal is reasonably likely to be consummated and if consummated would be more favorable, from a financial point of view, to the Company's stockholders than the transactions contemplated by this Agreement and the Company's Board determines, determines in good faith after consultation that it is necessary to furnish such information and negotiate in order to comply with outside counsel its fiduciary obligations to its stockholders (a "Superior Proposal"). In the event the Company receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this paragraph (b)) will prevent the Board from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its stockholders; in such case, the Board may withdraw, modify or refrain from making its recommendation of the Offer and the Merger; provided, however that the Company (i) shall have promptly notified Parent, and in any event within 24 hours, of any proposal for an independent financial advisorAlternative Acquisition received by, any such information requested from, or any such negotiations or discussions sought to be reasonably capable initiated or recommenced with, the Company or any of its subsidiaries, indicating, in connection with such notice, the name of the person making the proposal for an Alternative Acquisition or taking such action and, in reasonable detail, the significant terms of any such proposal for an Alternative Acquisition and including with such notice any documentation relating to such Alternative Acquisition, (ii) shall provide Parent at least two business days prior written notice of the Company's intention to execute or enter into an agreement relating to such Superior Proposal and (iii) may only terminate this Agreement by written notice to Parent provided no sooner than two business days after Parent's receipt of a copy of such Superior Proposal (as defined in Section 5.02(eor a detailed description of the significant terms and conditions thereof)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposal.

No Solicitation, Etc. (a1) From the date of this Agreement until the earlier of the Effective Time or Until the termination of this Agreement, the Company and its Subsidiaries shall not not, directly or indirectly, whether through any officer, director, employee, representative, agent or advisor (and it will use its reasonable best efforts to not permit including any attorney, accountant, consultants, banker or financial advisor) of the Company or any of its officersSubsidiaries or otherwise, directors, employees, investment bankers, counsel, auditors, consultants and other agents, affiliates or advisors to) directly or indirectly (i) solicit, engage in discussions initiate, encourage or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts initiation of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of inquiries or proposals regarding any merger, consolidationsale of substantial assets, acquisition sale of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock (including without limitation by way of a tender offer), liquidation, recapitalization, consolidation or other business combination involving the Company, Company or its Subsidiaries or acquisition or exchange of any capital stock or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice) of the Company or its Subsidiaries, or any combination of the foregoing or similar transactions involving the Company or any Subsidiaries of the Company other than the Merger (any of the foregoing inquiries or proposals being referred to herein as an “Alternative Acquisition”"Acquisition Proposal"), (ii) engage in negotiations or discussions concerning, or provide or disclose any nonpublic information with respect to the Company to any personPerson relating to, other than Parent, relating to a possible Alternative any Acquisition by any person, other than ParentProposal, (iii) enter into an agreement with any personagreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other than Parenttransactions contemplated hereby, providing for a possible Alternative Acquisition, or (iv) grant agree to, approve or recommend any waiver or release under any standstill or similar agreement with respect to any class Acquisition Proposal; provided, however, that nothing contained in this Section 5.2(a) shall prevent the Board of equity securities Directors of the Company or any of its Subsidiariesfrom considering, or (v) make or authorize any recommendation or solicitation in support of any possible Alternative Acquisition by any personnegotiating, other than by Parent. Notwithstanding the foregoing, prior approving and recommending to the approval stockholders of the Company a bona fide Acquisition Proposal which is received by the Company after the date and is not solicited in violation of this Agreement Agreement, if such a proposal is, in the opinion of the Company's Board of Directors, more favorable to the Company's stockholders than the transactions contemplated by this Agreement, and the holders Board of shares Directors of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”), the Company may, to the extent required by the fiduciary obligations of the Board, as determined determines in good faith by a majority (upon advice of the directors of the Company after consultation with outside legal counsel, in response to a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made by a person whom the Board determines, it is required to do so in good faith after consultation with outside counsel and an independent financial advisor, order not to be reasonably capable of making a Superior Proposal (as defined in Section 5.02(e)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and violate its representatives pursuant to a confidentiality agreement with terms relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposalfiduciary duties.

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementExcept as set forth below, the Company shall not (and it will use its reasonable best efforts to not not, nor shall the Company authorize or permit any of the Acquired Companies, or any of its or their officers, directors, employees, investment bankers, counsel, auditors, consultants and other representatives or agents, affiliates or advisors to) , directly or indirectly (i) indirectly, encourage, solicit, engage in discussions participate in, initiate or negotiate with any person (whether such continue discussions or negotiations are initiated with, or provide any information to, any Person (other than Parent or Sub) with respect to, or take any action to facilitate any inquiries or the making of, or enter into any agreement (including any preliminary agreement) relating to, or approve any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below). The Company shall, and shall cause each Acquired Company to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations by the Company, any Acquired Company or any officer, director or employee of, investment banker, attorney, accountant or other advisor or representative of, the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of merger, consolidation, acquisition of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Acquired 50 Company, or any material portion of the assets of the Company (an “Alternative Acquisition”), (ii) provide information with respect to the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, (iii) enter into an agreement with any person, other than Parent, providing for a possible Alternative Acquisition, (iv) grant any waiver or release under any standstill or similar agreement parties conducted heretofore with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parentforegoing. Notwithstanding the foregoingfirst sentence of this Section, at any time prior to the approval of this Agreement and the Merger by the holders of shares of Company Common Stock Company's stockholders at the Company Special Meeting (the “Stockholder Approval Date”as defined below), the Company maymay furnish information and access, in each case only in response to requests which were not solicited on or after the date hereof, to any Person pursuant to a customary confidentiality agreement, and may participate in discussions and negotiate with such Person concerning an Acquisition Proposal, if the extent required by the fiduciary obligations Board of the Board, as determined in good faith by a majority of the directors Directors of the Company after determines in its good faith judgment, following consultation with outside counsel, in response to that (i) such Person shall have submitted a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made by a person whom the Board determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of making a Superior Competitive Proposal (as defined in Section 5.02(e)), that below) which was not solicited by on or after the Company date hereof, and (ii) that did not otherwise result from a breach it is required to do so in order to comply with its fiduciary duties to stockholders under applicable Law. The Company's Board of this Section 5.02(aDirectors shall notify Parent orally (within one Business Day), and in writing (xas promptly as practicable) furnish information with respect of all inquiries and proposals that it may receive relating to the Company to the person or group making such Alternative any Acquisition Proposal and the material terms and conditions thereof, that it and any Acquired Company or any of its or their officers, directors, employees, representatives pursuant to a confidentiality agreement with terms or agents may receive relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy any Acquisition Proposal and thereafter keep Parent promptly advised of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations any material developments with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposalrespect thereto.

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement (and payment by the Company of amounts, if any, due and payable prior to the termination of this Agreement in connection with such termination pursuant to Section 8.01(e)(iii)), the Company and its subsidiaries shall not (and it will use its reasonable best efforts to not permit any shall direct all of its their respective officers, directors, employeesagents or affiliates, including without limitation any investment bankersbanker, counselattorney, auditors, consultants and other agents, affiliates or advisors accountant retained by the Company or its subsidiaries not to) directly or indirectly (i) solicit, engage in discussions or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) including initiating, soliciting or encouraging any inquiries or the making or implementation of any proposal or offer relating to the possible acquisition of the Company (including, without limitation, any proposal or offer to the stockholders of the Company and whether by way of merger, consolidationpurchase of capital stock, acquisition purchase of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Company, ) or any material portion of the its capital stock or assets of the Company (with any such efforts by any such person, including a firm proposal to make such an “acquisition, to be referred to as an "Alternative Acquisition”"), (ii) provide any information with respect to the Company or afford access to the properties, books or records of the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, or otherwise facilitate or assist the making of any proposal or offer relating to an Alternate Acquisition, (iii) enter into an agreement with any person, other than Parent, contemplating or providing for a possible Alternative Acquisition, or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any statement, recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parent. Notwithstanding the foregoing, prior to the approval acceptance for payment of this Agreement by Shares pursuant to the holders of shares of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”), Offer the Company may, to the extent required by the fiduciary obligations of the Board, as determined in good faith by a majority of the directors of the Company disinterested members thereof after consultation with outside counsel, in response to a an unsolicited bona fide written proposal for an Alternative Acquisition (“"Alternative Acquisition Proposal”") that was made by a person whom the Board determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of making consummating a Superior Company Proposal (as defined in Section 5.02(e6.02(e)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a6.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms relating to confidentiality no less favorable restrictive than the agreement identified in Section 5.03(b) (a copy terms of which shall be provided for informational purposes only to Parent) the Mutual Nondisclosure Agreement and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposal; provided, that, at least one (1) business day prior to taking the actions contemplated in (x) and (y) above (except that the Company shall have the right during such period to negotiate a confidentiality agreement with the person or group making such Alternative Acquisition Proposal and its representatives that is no less favorable to the Company than the Mutual Nondisclosure Agreement), the Company shall provide Parent with written notice of its right to take such action and the identity of the person making such Alternative Acquisition Proposal. Subject to the foregoing provisions of this Section 6.02, the Company shall, and shall cause its directors, officers, employees, agents and representatives to, cease immediately and cause to be terminated all discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, an Alternative Acquisition Proposal.

No Solicitation, Etc. (a) From the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementExcept as set forth below, the Company shall not (and it will use its reasonable best efforts to not not, nor shall the Company authorize or permit any of the Acquired Companies, or any of its or their officers, directors, employees, investment bankers, counsel, auditors, consultants and other representatives or agents, affiliates or advisors to) , directly or indirectly (i) indirectly, encourage, solicit, engage in discussions participate in, initiate or negotiate with any person (whether such continue discussions or negotiations are initiated with, or provide any information to, any Person (other than Parent or Sub) with respect to, or take any action to facilitate any inquiries or the making of, or enter into any agreement (including any preliminary agreement) relating to, or approve any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below). The Company shall, and shall cause each Acquired Company to, immediately cease and cause to be terminated any existing activities, discussions, or negotiations by the Company, any Acquired Company or any officer, director or employee of, investment banker, attorney, accountant or other advisor or representative of, the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of merger, consolidation, acquisition of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Acquired Company, or any material portion of the assets of the Company (an “Alternative Acquisition”), (ii) provide information with respect to the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, (iii) enter into an agreement with any person, other than Parent, providing for a possible Alternative Acquisition, (iv) grant any waiver or release under any standstill or similar agreement parties conducted heretofore with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parentforegoing. Notwithstanding the foregoingfirst sentence of this Section, at any time prior to the approval of this Agreement and the Merger by the holders of shares of Company Common Stock Company's stockholders at the Company Special Meeting (the “Stockholder Approval Date”as defined below), the Company maymay furnish information and access, in each case only in response to requests which were not solicited on or after the date hereof, to any Person pursuant to a customary confidentiality agreement, and may participate in discussions and negotiate with such Person concerning an Acquisition Proposal, if the extent required by the fiduciary obligations Board of the Board, as determined in good faith by a majority of the directors Directors of the Company after determines in its good faith judgment, following consultation with outside counsel, in response to that (i) such Person shall have submitted a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made by a person whom the Board determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of making a Superior Competitive Proposal (as defined in Section 5.02(e)), that below) which was not solicited by on or after the Company date hereof, and (ii) that did not otherwise result from a breach it is required to do so in order to comply with its fiduciary duties to stockholders under applicable Law. The Company's Board of this Section 5.02(aDirectors shall notify Parent orally (within one Business Day), and in writing (xas promptly as practicable) furnish information with respect of all inquiries and proposals that it may receive relating to the Company to the person or group making such Alternative any Acquisition Proposal and the material terms and conditions thereof, that it and any Acquired Company or any of its or their officers, directors, employees, representatives pursuant to a confidentiality agreement with terms or agents may receive relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy any Acquisition Proposal and thereafter keep Parent promptly advised of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations any material developments with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposalrespect thereto.

No Solicitation, Etc. (a) From the date of this Agreement until --------------------- the earlier of the Effective Time Board Transition Date or the termination of this Agreement, the Company shall will not (and it will use its reasonable best efforts to not permit any of its officers, directors, employeesagents, affiliates, investment bankers, counsel, auditors, consultants and other agents, affiliates accountants or advisors attorneys to) directly or indirectly (i) solicit, engage in discussions or negotiate with any person (whether such discussions or negotiations are initiated by the Company or otherwise) or take any other action intended or designed to facilitate the efforts of any person (other than Parent) relating to the possible acquisition of the Company (whether by way of merger, consolidationpurchase of capital stock, acquisition purchase of stock or assets or otherwise), or the possible acquisition of more than 15% of the voting power of all outstanding shares of capital stock of the Company, ) or any material portion of the its capital stock or assets of the Company (with any such efforts by any such person, including a firm proposal to make such an “acquisition, to be referred to as an "Alternative Acquisition”"), (ii) provide information with respect to the Company to any person, other than Parent, relating to a possible Alternative Acquisition by any person, other than Parent, (iii) enter into an agreement with any person, other than Parent, providing for a possible Alternative Acquisition, or (iv) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) make or authorize any statement, recommendation or solicitation in support of any possible Alternative Acquisition by any person, other than by Parent. The Company shall and shall cause its representatives to cease immediately and cause to be terminated all activities, discussions and negotiations, if any, conducted prior to the date hereof with respect to any Alternative Acquisition. Notwithstanding anything to the foregoingcontrary contained in Section 6.02 or elsewhere in this Agreement, prior to the approval consummation of this Agreement by the holders of shares of Company Common Stock at the Special Meeting (the “Stockholder Approval Date”)Offer, the Company maymay participate in discussions or negotiations with, and furnish non-public information, and afford access to the extent required by the fiduciary obligations of the Boardproperties, as determined in good faith by a majority of the directors books, records, officers, employees and representatives of the Company after consultation with outside counselto any person, entity or group if such person, entity or group has delivered unsolicited to the Company, prior to the consummation of the Offer, and in response to writing, a bona fide written proposal for an Alternative Acquisition (“Alternative Acquisition Proposal”) that was made which is not subject to any financing contingency, which the Board by a person whom majority vote in its good faith judgment (after consultation with its independent financial advisor) determines that such proposal is reasonably likely to be consummated and if consummated would be more favorable, from a financial point of view, to the Company's stockholders than the transactions contemplated by this Agreement and the Company's Board determines, determines in good faith after consultation that it is necessary to furnish such information and negotiate in order to comply with outside counsel its fiduciary obligations to its stockholders (a "Superior Proposal"). In the event the Company receives a Superior Proposal, nothing contained in this Agreement (but subject to the terms of this paragraph (b)) will prevent the Board from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its stockholders; in such case, the Board may withdraw, modify or refrain from making its recommendation of the Offer and the Merger; provided, however that the Company (i) shall have promptly notified Parent, and in any event within 24 hours, of any proposal for an independent financial advisorAlternative Acquisition received by, any such information requested from, or any such negotiations or discussions sought to be reasonably capable initiated or recommenced with, the Company or any of its subsidiaries, indicating, in connection with such notice, the name of the person making the proposal for an Alternative Acquisition or taking such action and, in reasonable detail, the significant terms of any such proposal for an Alternative Acquisition and including with such notice any documentation relating to such Alternative Acquisition, (ii) shall provide Parent at least two business days prior written notice of the Company's intention to execute or enter into an agreement relating to such Superior Proposal and (iii) may only terminate this Agreement by written notice to Parent provided no sooner than two business days after Parent's receipt of a copy of such Superior Proposal (as defined in Section 5.02(eor a detailed description of the significant terms and conditions thereof)), that was not solicited by the Company and that did not otherwise result from a breach of this Section 5.02(a), (x) furnish information with respect to the Company to the person or group making such Alternative Acquisition Proposal and its representatives pursuant to a confidentiality agreement with terms relating to confidentiality no less favorable than the agreement identified in Section 5.03(b) (a copy of which shall be provided for informational purposes only to Parent) and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Alternative Acquisition Proposal.