Common use of No Solicitation Clause in Contracts

No Solicitation. (a) The Company shall not directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Subject to Section 5.3(b), from and after the date hereof until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Article 7, (x) the Company shall not directly or indirectly donot, and shall ensure that no Representative of any cause the Company Subsidiaries not to, and shall use reasonable best efforts to cause the Company Representatives not to on behalf of the Acquired Corporations Company, directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, solicit or take any action to knowingly encourageencourage or take any other action intended to facilitate (including by way of providing material non-public information) the submission of, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in any discussions or negotiations with any Person with respect to any Acquisition Proposal on (other than informing any Third Party in writing of the existence of the provisions contained in this Section 5.3), except that the Company may ascertain facts from any Person making an Acquisition Inquiry; Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it. Neither the Company Board nor any committee thereof shall (ivi) approveapprove or recommend, endorse or recommend publicly propose to approve or recommend, any Acquisition Proposal; Proposal or, if an Acquisition Proposal has been publicly disclosed, fail to publicly recommend against any such Acquisition Proposal within 10 Business Days of the request of Parent and reaffirm the Company Board Recommendation within such 10 Business Day period upon such request, (ii) withdraw, change or qualify, or propose publicly to withdraw, change or qualify, in any such case in a manner adverse to the Parent or Merger Sub, the Company Board Recommendation, (viii) execute approve or cause the Company to enter into any merger agreement, letter of intent or other similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise agreement relating to any Acquisition Transaction; providedProposal, however, that, notwithstanding anything contained or (iv) resolve or agree to do any of the foregoing (any action set forth in this Section 4.3(athe foregoing clauses (i), (ii) or (iv) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”). The Company shall (A) promptly cease and cause (or in the case of the Company Representatives, use reasonable best efforts to cause) to be terminated any discussion or negotiation with any Persons conducted prior to the adoption and approval of this Agreement date hereof by the Required Company, the Company Subsidiaries or any of the Company Representatives with respect to any Acquisition Proposal, (B) request the prompt return or destruction of all information previously furnished to any such Person or its representatives and written certification of such return or destruction, (C) only waive any “standstill” provisions binding such Person or its representatives of which the Company is a beneficiary on the condition that such Person shall not in any way restrict the Company or the Company Representatives from complying with its obligations under this Section 5.3, provided that the Company must notify Parent of any such waiver within 24 hours, and (D) take such action as is reasonably necessary to enforce against such Person or its representatives any confidentiality provisions or provisions of similar effect to which the Company or any Company Subsidiary is a party or of which any of them is a beneficiary. (b) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any time following the date hereof and prior to the receipt of the Company Stockholder VoteApproval (i) the Company has received a bona fide unsolicited written Acquisition Proposal from a Third Party, (ii) the Company has not breached this Section 5.3 in any material respect with respect to such Acquisition Proposal and (iii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, based on information then available, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, then the Company may, subject to providing prior written notice to the Parent of its decision to take such action and compliance with Section 5.3(c), (A) in response furnish information with respect to an the Company and the Company Subsidiaries to the Third Party making such Acquisition Inquiry that has been made by such Person (Proposal, its representatives and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, potential sources of financing and (B) participate in response discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) will not, and will cause the Company Subsidiaries not to and` will instruct the Company Representatives not to disclose any information to such Person without first entering into an Acceptable Confidentiality Agreement with such Person and (y) will provide to the Parent any material information concerning the Company or the Company Subsidiaries provided or made available to such other Person which was not previously provided or made available to the Parent as promptly as practicable (and in any event within 48 hours). (c) The Company shall promptly (and in any event within 24 hours) notify the Parent in writing in the event that the Company receives any Acquisition Proposal or of any request for information relating to the making of any Acquisition Proposal, and shall keep Parent informed of the material proposed terms (including amendments or proposed amendments thereto) of any such Acquisition Proposal. The Company shall notify the Parent orally and in writing promptly (and in any event within 24 hours) of the identity of such Person and provide to Parent a copy of such Acquisition Proposal (or, where no such copy is available, a reasonable description, including the identity of the other party and all material terms, of such Acquisition Proposal). Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours after such determination) advise the Parent if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal that has been made by such Person pursuant to Section 5.3(b). (and not withdrawnd) Notwithstanding anything to the contrary contained in Section 5.3(a), furnish nonpublic information regarding if the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Company has received a bona fide written Acquisition Proposal shall that did not have arisen directly or indirectly result from any a breach of any of the provisions set forth in this Section 4.3; (2) 5.3 and the board of directors determines in good faith by majority voteCompany Board determines, after having considered the advice of the Company’s consultation with its financial advisors and outside legal counsel and the Financial Advisor counsel, that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such PersonProposal, the Company gives Board may at any time prior to receipt of the Company Stockholder Approval, (i) effect a Change of Board Recommendation with respect to such Superior Proposal or fail to include the Company Board Recommendation in the Proxy Statement and/or (ii) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, in either case subject to the requirements of this Section 5.3(d). The Company shall not be entitled to effect a Change of Board Recommendation pursuant to this Section 5.3(d) or terminate this Agreement pursuant to this Section 5.3(d) and Section 7.1(f) unless the Company shall have provided to the Parent at least three Business Days’ prior written notice of (the identity of such Person and “Notice Period”) of the Company’s intention to furnish nonpublic information totake such action, or enter into discussions or negotiations with, such Person; which notice shall specify the material terms and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt conditions of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition InquiryProposal), and shall have provided to the terms thereof). The Parent a copy of the available proposed transaction agreement and all other definitive agreements to be entered into in connection with such Acquisition Proposal, and: (i) during the Notice Period, if requested by Parent, the Company shall keep have, and shall have caused its legal and financial advisors to have, engaged in good faith negotiations with Parent fully informed regarding any amendment to this Agreement proposed in writing by Parent and intended to cause the relevant proposal to no longer constitute a Superior Proposal; and (ii) the Company Board shall have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 a.m., New York City time, on the last day of the Notice Period and shall have determined in good faith that the Superior Proposal would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect. In the event of any material revisions to such Superior Proposal offered in writing by the party making such Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(d) with respect to such new written notice, except that the status and terms of Notice Period shall be 48 hours with respect to any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretorevised Superior Proposal, but no such new written notice shall shorten the original Notice Period. (ce) The Notwithstanding anything to the contrary contained in Section 5.3(a), in circumstances other than in response to an Acquisition Proposal as provided in Section 5.3(d), the Company shall immediately cease and cause to be terminated Board may at any discussions time prior to or as obtaining the Company Stockholder Approval effect a Change of Board Recommendation if (i) the Company Board determines that an Intervening Event has occurred and is continuing and (ii) the Company Board determines in good faith, after consultation with outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties to the stockholders of the date Company, but such Change of Board Recommendation shall not occur until a time that is after the third Business Day following the Parent’s receipt of written notice from the Company advising the Parent of all available material information with respect to such Intervening Event and stating that it intends to make a Change of Board Recommendation, and provided that (A) during such three Business Day period the Company has negotiated in good faith with the Parent to the extent the Parent wishes to negotiate to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with the Company Board Recommendation and (B) at the end of such three Business Day period, the Company Board maintains its determination described in this clause (ii) (after taking into account any Person that relate adjustments offered in writing by the Parent to any Acquisition Proposal or Acquisition Inquirythe material terms and conditions of this Agreement). (df) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties or, based on the advice of outside counsel, violate applicable Law. The issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not release or permit the release constitute a Change of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsBoard Recommendation.

No Solicitation. (a) The Company During the Pre-Closing Period, Remainco shall not not, directly or indirectly doindirectly, and Remainco shall ensure that no Representative of any cause its Subsidiaries and its and their respective officers, directors and employees not to, and use reasonable best efforts to cause the respective other Representatives of the Acquired Corporations Remainco Companies not to, directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, knowingly encourage, induce encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or any Acquisition InquiryInquiry with respect to Remainco, the Spinco Companies or the Spinco Business; (ii) furnish any non-public information regarding any of the Acquired Corporations Remainco Companies to any Person in connection with or in response to an any Acquisition Proposal or any Acquisition InquiryInquiry with respect to Remainco, the Spinco Companies or the Spinco Business; (iii) engage in discussions or negotiations with any Person with respect relating to any Acquisition Proposal on or any Acquisition InquiryInquiry with respect to Remainco, the Spinco Companies or the Spinco Business (other than to state that they are not currently permitted to have discussions); (iv) approve, endorse or recommend any Acquisition ProposalProposal or any Acquisition Inquiry with respect to Remainco, the Spinco Companies or the Spinco Business; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition TransactionTransaction or any Acquisition Inquiry with respect to Remainco, the Spinco Companies or the Spinco Business; providedor (vi) reimburse or agree to reimburse the expenses of any other Person (other than Remainco’s Representatives) in connection with any Acquisition Proposal or any Acquisition Inquiry with respect to Remainco, howeverthe Spinco Companies or the Spinco Business. (b) During the Pre-Closing Period, thatRMT Partner shall not, notwithstanding directly or indirectly, and RMT Partner shall cause its Subsidiaries and its and their respective officers, directors and employees not to, and use reasonable best efforts to cause the respective other Representatives of the RMT Partner Companies not to, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner; (ii) furnish any information regarding any of the RMT Partner Companies to any Person in connection with or in response to any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner; (iii) engage in discussions or negotiations with any Person relating to any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner (other than to state that they are not currently permitted to have discussions); (iv) approve, endorse or recommend any Acquisition Proposal or any Acquisition Inquiry with respect to RMT Partner; (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction or any Acquisition Inquiry with respect to RMT Partner; or (vi) reimburse or agree to reimburse the expenses of any other Person (other than RMT Partner’s Representatives) in connection with any Acquisition Proposal with respect to RMT Partner or any Acquisition Inquiry with respect to RMT Partner. (c) Notwithstanding anything contained in this Section 4.3(a4.5(b), if at any time after the execution of this Agreement and prior to the adoption and approval of this Agreement the issuance of shares of RMT Partner Common Stock pursuant to the Merger by the Required RMT Partner Stockholder Vote (and in no event after obtaining the Required RMT Partner Stockholder Vote, the Company may), (Ai) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an RMT Partner shall receive a bona fide written Acquisition Proposal with respect to RMT Partner that has been made by such Person did not result from a breach of Section 4.5(b) (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (Aother than an immaterial breach) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2ii) the board of directors RMT Partner Board determines in good faith by majority vote, after having considered the advice of the Companyconsultation with RMT Partner’s financial advisor and outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer is or is would reasonably likely be expected to lead to a RMT Partner Superior Offer; (3) Proposal and the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action the following actions would reasonably be reasonably likely expected to result in a breach be inconsistent with the fiduciary duties of its fiduciary obligations to the Company’s stockholders RMT Partner Board under applicable Legal Requirements; Requirement, then RMT Partner may (4A) at least two business days furnish information regarding the RMT Partner Companies (it being understood that in no event shall any of the RMT Partner Companies or their respective Representatives furnish any information regarding Remainco or any of its Subsidiaries (including the Spinco Companies) or the Spinco Business) to the Person making such Acquisition Proposal and its Representatives or (B) enter into discussions and negotiations with the Person making such Acquisition Proposal and its Representatives, provided that (1) prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, to such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company RMT Partner receives from such Person an executed confidentiality agreement containing that contains customary provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the aggregate to RMT Partner as the provisions of the Confidentiality Agreement as in effect immediately prior to the Company as those contained execution of this Agreement and allows for RMT Partner to comply with its obligations in this Agreement; (2) RMT Partner gives Remainco prompt written notice of any such determination by the Confidentiality AgreementRMT Partner Board (which notice shall be no later than 24 hours after such determination by the RMT Partner Board); and (63) concurrently RMT Partner furnishes or Makes Available any non-public information furnished or Made Available to such Person to Remainco (to the extent such information has not been previously furnished or Made Available by RMT Partner to Remainco) prior to or substantially concurrent with furnishing any such nonpublic information the time it is provided or made available to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (bd) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time Except as expressly permitted by Section 5.2, during the Pre-Closing Period, the RMT Partner Board (or any committee thereof) shall not (i) effect RMT Partner Change in Recommendation, (ii) adopt, approve, endorse, declare advisable or recommend to RMT Partner’s shareholders an Acquisition Proposal with respect to RMT Partner other than the Contemplated Transactions, (iii) fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days following receipt of a written request by Remainco to provide such reaffirmation after an Acquisition Proposal shall have been publicly disclosed or shall have become publicly known (provided that Remainco may only make such request once with respect to any Acquisition Proposal with respect to RMT Partner and once with respect to each material amendment to any Acquisition Proposal with respect to RMT Partner), (iv) fail to include in the Joint Proxy Statement/Prospectus the RMT Board Partner Recommendation or include in the Joint Proxy Statement/Prospectus any proposal to vote upon or consider any Acquisition Proposal with respect to RMT Partner other than the Contemplated Transactions or (v) fail to recommend against a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of RMT Partner within ten (10) Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders). (e) Notwithstanding anything in Section 4.5(a), if at any time after the execution of this Agreement and prior to obtaining the Required Remainco Stockholder Vote (and in no event after obtaining the Required Remainco Stockholder Vote), (i) Remainco shall receive a bona fide written Acquisition Proposal with respect to Remainco that did not result from a breach of Section 4.5(a) (other than an immaterial breach) and (ii) the Remainco Board determines in good faith after consultation with Remainco’s financial advisor and outside legal counsel that such Acquisition Proposal is or would reasonably be expected to lead to a Remainco Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with the fiduciary duties of the Remainco Board under applicable Legal Requirement, then Remainco may (A) furnish information regarding the Company Remainco Companies or Spinco Companies (it being understood that in no event shall any of the Remainco Companies, Spinco Companies or their respective Representatives furnish any information regarding RMT Partner or any of its Subsidiaries to the Person making such Acquisition Proposal and its Representatives) or (B) enter into discussions and negotiations with the Person making such Acquisition Proposal and its Representatives, provided that (1) prior to furnishing any such information to such Person, Remainco receives from such Person an executed confidentiality agreement that contains customary provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the aggregate to Remainco as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement and allows for Remainco to comply with its obligations in this Agreement; (2) Remainco gives RMT Partner prompt written notice of any such determination by the Remainco Board (which notice shall be no later than 24 hours after such determination by the Remainco Board); and (3) Remainco furnishes or Makes Available any non-public information furnished or Made Available to such Person to RMT Partner (to the extent such information has not been previously furnished or Made Available by Remainco to RMT Partner) prior to or substantially concurrent with the time it is provided or made available to such Person. (f) Except as expressly permitted by Section 5.3, during the Pre-Closing Period, the Remainco Board (or any committee thereof) shall not (i) effect a Remainco Change in Recommendation, (ii) adopt, approve, endorse, declare advisable or recommend to Remainco’s stockholders an Acquisition Proposal with respect to Remainco or Spinco other than the Contemplated Transactions, (iii) fail to publicly reaffirm its recommendation of this Agreement within five (5) Business Days following receipt of a written request by RMT Partner to provide such reaffirmation after an Acquisition Proposal shall have been publicly disclosed or shall have become publicly known (provided that RMT Partner may only make such request once with respect to any Acquisition Proposal with respect to Remainco or Spinco and once with respect to each material amendment to any Acquisition Proposal with respect to Remainco or Spinco, (iv) fail to include in the Joint Proxy Statement/Prospectus the Remainco Board Recommendation or include in the Joint Proxy Statement/Prospectus any proposal to vote upon or consider any Acquisition Proposal with respect to Remainco or Spinco other than the Contemplated Transactions or (v) fail to recommend against a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of Remainco within ten (10) Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders). (g) Each of RMT Partner and Remainco shall promptly (and in no event later than 48 hours 24 hours) after receipt of such any Acquisition Proposal with respect to either (i) Remainco, the Spinco Business or a Spinco Company or (ii) RMT Partner, as the case may be, or Acquisition InquiryInquiry with respect to either (A) Remainco, the Spinco Business or a Spinco Company or (B) RMT Partner, as the case may be, advise Parent the other party to this Agreement orally and in writing of any such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, Inquiry and the terms thereof), including a copy of any written Acquisition Proposal or Acquisition Inquiry and any other agreements proposed to be entered into by RMT Partner or Remainco or any of their respective Subsidiaries, as the case may be, and the Person making such Acquisition Proposal or Acquisition Inquiry or any of its Subsidiaries or its or their respective Representatives, as the case may be, and any documentation in respect of such Acquisition Proposal or Acquisition Inquiry received from the proponent thereof or its Representative) that is made or submitted by any Person during the Pre-Closing Period. The Company Each party receiving an Acquisition Proposal or Acquisition Inquiry shall keep Parent fully the other party reasonably informed on a reasonably prompt basis with respect to: (1) the status of any such Acquisition Proposal or Acquisition Inquiry, including, with respect to an Acquisition Proposal or Acquisition Inquiry received by RMT Partner only, any negotiations with respect thereto and (2) the status and terms of any material modification or proposed material modification thereto, copies of any written materials (including e-mail correspondence) received from the proponent thereof or its Representative proposing any such changes to any such Acquisition Proposal or Acquisition Inquiry and drafts of any modification agreements proposed to be entered into by RMT Partner or proposed modification theretoany of its respective Subsidiaries, as the case may be, and the Person making such Acquisition Proposal or Acquisition Inquiry or any of its Subsidiaries or its or their respective Representatives, as the case may be. (ch) The Company Each of RMT Partner and Remainco shall, and shall cause their respective Subsidiaries and use reasonable best efforts to cause their respective Representatives to, immediately cease and cause to be terminated any discussions prior to conducted on or as of before the date of this Agreement with any Person that relate to any Acquisition Proposal with respect to either (i) Remainco, the Spinco Business or a Spinco Company or (ii) RMT Partner, as the case may be, or Acquisition InquiryInquiry with respect to either (A) the Spinco Business, the Spinco Assets or a Spinco Company or (B) RMT Partner, as the case may be, and request the prompt return or destruction of all confidential information previously furnished. (di) The Company shall Each of Remainco and RMT Partner agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of or right underof, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction Contract to which any such party or any of the Acquired Corporations its Subsidiaries is a party or under which any such party or any of the Acquired Corporations its Subsidiaries has any rights, and shall enforce or will use its commercially reasonable efforts to cause to be enforced each such agreement to be enforced at the request of the other party to this Agreement except, in the case of (x) RMT Partner, to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement the RMT Partner Board determines in connection good faith, after having consulted with its consideration outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of a possible Acquisition Transaction or equity investment the RMT Partner Board to return its stockholders under applicable Legal Requirement and (y) Remainco, to the Acquired Corporations all confidential information heretofore furnished extent that the Remainco Board determines in good faith, after having consulted with its outside legal counsel, that failure to take such Person by or on behalf of any action would reasonably be expected to be inconsistent with the fiduciary duties of the Acquired CorporationsRemainco Board to its stockholders under applicable Legal Requirement.

No Solicitation. (a) The Company shall not directly or indirectly dowill not, and shall use its reasonable best efforts to ensure that no Representative of any of the Acquired Corporations its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, knowingly solicit or encourage, induce or knowingly take any action to facilitate the makingmaking of, submission any offer or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal proposal which constitutes a Superior Offer or is reasonably likely to lead to any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other 55 than Parent, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company in its SEC Reports) relating to any Acquisition Proposal; provided, however, that nothing -------- ------- contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company Board of Directors from (i) taking and disclosing to the Company's stockholders its position with respect to tender or exchange offer by a Superior Offer; third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (3ii) making such disclosure to the board Company's stockholders as the Board of directors Directors determines in good faith by majority votefaith, only after having considered the receiving advice of from outside legal counsel to the Company’s outside legal counsel, that the failure to take make such action would be disclosure is reasonably likely to result in a breach cause the Company Board of Directors to violate its fiduciary obligations duties to the Company’s 's stockholders under applicable Legal Requirements; law. (4b) at least two business days Notwithstanding the foregoing, prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personthe acceptance of Shares pursuant to the Offer, the Company gives Parent written notice of the identity of such may furnish information concerning its business, properties or assets to any Person and of the Company’s intention pursuant to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed appropriate confidentiality agreement containing agreements with "standstill" provisions at least as no less favorable to the Company as than those contained in the Confidentiality Agreement; , dated November 14, 1997 entered into between Fremont Partners, an affiliate of Parent, and the Purchaser and the Company (the "Confidentiality Agreement") and may negotiate ------------------------- and participate in discussions and negotiations with such Person concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Company Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and which is not conditioned upon obtaining additional financing and (6y) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information Board of Directors determines in good faith, only after receiving advice from outside legal counsel to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach that the failure to provide such information or access or to engage in such discussions or negotiations is reasonably likely to cause the Board of this Section 4.3 by Directors to violate its fiduciary duties to the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. 's stockholders under applicable law (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The ----------------- Company shall promptly (promptly, and in no any event later than 48 hours after within two business days following receipt of such Acquisition Proposal or Acquisition Inquiry) advise a Superior Proposal, notify Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting receipt of the same and prior to providing any such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)party with any material non-public information. The Company shall keep promptly provide to Parent fully informed with respect any material non- public information regarding the Company provided to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoother party which was not previously provided to Parent. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or Except as set forth herein, neither the Board of Directors of the date Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, this Agreement with any Person that relate or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Inquiry. Proposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, the Board of Directors of the Company may (dsubject to the terms of this and the following sentence) The terminate this Agreement in accordance with Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided, however, that -------- ------- the Company shall not release or permit enter into an agreement with respect to a Superior Proposal unless the release Company shall have furnished Parent with written notice not later than 12:00 noon two business days in advance of any Person fromdate that it intends to enter into such agreement. In addition, or waive or permit if the waiver of Company proposes to enter into an agreement with respect to any provision of or right underAcquisition Proposal, any confidentialityit shall concurrently with entering into such agreement pay, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement paid, to Parent the Termination Fee (as defined in Section 8.2(b)), plus any amounts payable at said time for reimbursement of expenses pursuant to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration provisions of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsSection 8.2(b).

No Solicitation. (a) The From and after the date hereof, the Company shall will not, and will not permit any of its or its Subsidiaries' officers, directors or employees to, and the Company will use its reasonable best efforts to cause all of its and its Subsidiaries' attorneys, financial advisors, agents and other representatives not to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage (including by way of furnishing information) any Takeover Proposal, or engage in or continue discussions or negotiations relating thereto; provided, however, that the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) Company may engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approvewith, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, furnish information concerning the Company mayand its business, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations properties or assets to, or enter into discussions or conduct negotiations with, such Personany third party which makes a Takeover Proposal (as hereinafter defined) if the Board of Directors of the Company determines, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in its good faith by majority votejudgement, after having considered based on the advice opinion of the Company’s independent outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure failing to take such action would be reasonably likely to result in constitute a breach of its fiduciary obligations such Board's duties under applicable law; provided, further, that nothing in this Section 6.2 shall prevent the Company or the Board from taking, and disclosing to the Company’s 's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer or from making such disclosure to the Company's stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information towhich, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and as advised in an opinion of the Company’s intention to furnish nonpublic information to's independent outside legal counsel, or enter into discussions or negotiations withis required under applicable law; provided, such Person; and (5) further, that the Board shall not recommend that the stockholders of the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained tender their shares in the Confidentiality Agreement; and (6) concurrently connection with furnishing any such nonpublic information to such Person, tender offer unless the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees thatBoard determines, in its good faith judgment, based on the event any Representative opinion of any of the Acquired Corporations (whether or not such Representative is purporting independent outside legal counsel to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, that failing to take such action would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Board's duties under applicable law. The Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative will promptly notify Parent of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during Takeover Proposal, including the Pre-Closing Period, then the Company shall promptly (material terms and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally conditions thereof and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person person or group making or submitting such Acquisition Proposal or Acquisition InquiryTakeover Proposal, and the terms thereof). The Company shall keep will promptly notify Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of determination by the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.Company's Board of

No Solicitation. (a) The Company shall not directly or indirectly doshall, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations cause its Representatives to, or enter into discussions or conduct cease any negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would may be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or ongoing as of the date of this Agreement with any Person that relate with respect to any Acquisition Takeover Proposal. The Company shall not, and shall not authorize or (to the extent within its control) permit the Company’s Representatives to, (i) solicit any Takeover Proposal or (ii) participate in any negotiations with any third party regarding any Takeover Proposal. Notwithstanding the foregoing, the Company and the Company’s Representatives may in any event have discussions with any Person in order to (A) clarify and understand the terms and conditions of any bona fide written inquiry or proposal made by such Person (so long as such inquiry or proposal was unsolicited or was made prior to the execution of this Agreement and so long as such inquiry or proposal did not result from a willful breach of this Section 6.5) and to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (B) notify such Person of the provisions of this Agreement. The Company agrees that any violation of the restrictions set forth in this Section 6.5 by any Representative of the Company or any of its Subsidiaries, at the direction or with the consent of the Company or its Subsidiaries (or with the prior Knowledge of the Company or its Subsidiaries if the Company shall have failed to instruct such Representatives not to commit such violation upon becoming aware of such proposed violation), shall be deemed to be a breach of this Section 6.5 by the Company. If, after the date of this Agreement and prior to the Acceptance Time, the Company Board receives an unsolicited bona fide Takeover Proposal that it determines in good faith, after consultation with (and consideration of the advice of) the Company’s outside counsel and the Company Financial Advisor, constitutes or could reasonably be expected to lead to a Superior Proposal, then the Company may furnish any information with respect to the Company and the Company’s Subsidiaries to the Person making such Takeover Proposal and participate in discussions and negotiations with such Person regarding a Takeover Proposal; provided that (x) such Person enters into an Acceptable Confidentiality Agreement and (y) a copy of all such information not previously provided to Parent (or its Representatives) is promptly provided to Parent. (b) Except as expressly permitted by this Section 6.5(b), the Company Board shall not (i) (A) withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation or (B) publicly recommend to the Company’s stockholders a Takeover Proposal (any action described in this clause (i) being referred to as a “Recommendation Change”) or (ii) authorize the Company or any of the Company’s Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, an “Alternative Acquisition InquiryAgreement”). However, if, after the date of this Agreement and prior to the Acceptance Time, the Company Board receives an unsolicited bona fide Takeover Proposal that, after consultation with (and consideration of the advice of) the Company’s outside counsel and the Company Financial Advisor, the Company Board concludes in good faith constitutes a Superior Proposal, then the Company Board may withdraw or modify the Company Board Recommendation or recommend such Superior Proposal and the Company or the Company’s Subsidiaries may enter into an Alternative Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Alternative Acquisition Agreement terminated this Agreement pursuant to Section 8.4(b). (c) Nothing contained in this Agreement (including, without limitation, this Section 6.5) shall prohibit the Company Board from (i) making any “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9 under the Exchange Act or (ii) complying with its disclosure obligations under U.S. federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (iii) disclosing the fact that the Company Board has received a Takeover Proposal and the terms of such proposal, if the Company Board determines, after consultation with its outside legal counsel, that the failure to take any such actions would be inconsistent with its fiduciary duties under applicable Law or to comply with obligations under federal securities Laws; provided that any disclosure other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9 under the Exchange Act shall be deemed to be a Recommendation Change unless the Company Board (A) expressly reaffirms its recommendation to its stockholders in favor of adoption of this Agreement or (B) rejects such other Takeover Proposal. (d) The Notwithstanding anything in this Agreement to the contrary, the Company shall Board may not release effect a Recommendation Change or permit terminate this Agreement pursuant to Section 8.4(b) unless (i) the release Company has: (A) complied in all material respects with this Section 6.5, (B) provided to Purchaser at least three (3) Business Days’ prior written notice advising Purchaser that the Company Board intends to take such action and specifying the reasons therefor, including the terms and conditions of any Person fromSuperior Proposal that is the basis of the proposed action and the identity of the person making the proposal, and (C) during such three (3) Business Day period, if requested by Purchaser, engaged in good faith negotiations with Purchaser to amend this Agreement in such a manner to improve the terms of this Agreement in favor of the Company so that any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal and (ii) at the end of such three (3) Business Day period, such Takeover Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement as a result of the negotiations required by clause (i)(C) or waive or permit otherwise). In the waiver event of any provision of or right underrevisions to a Superior Proposal (including, without limitation, any confidentialityrevision in price or other term), non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could the three (3) Business Day period will restart (it being understood that there may be deemed multiple three (3) Business Day periods pursuant to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Section 6.5(d)).

No Solicitation. KNBT shall not, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to: (a) The Company shall not directly initiate, solicit, encourage (including by way of furnishing information), or indirectly dotake any other action to facilitate, and shall ensure that no Representative any inquiries or the making of any proposal which constitutes any Acquisition Proposal; (b) enter into or maintain or continue discussions or negotiate with any person in furtherance of an Acquisition Proposal; or (c) agree to or endorse any Acquisition Proposal; provided, however, that notwithstanding anything to the Acquired Corporations directly or indirectly does, any of the following: contrary contained in this Agreement: (i) solicit, initiate, knowingly encourage, induce KNBT may furnish or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any cause to be furnished confidential and non-public information regarding any of the Acquired Corporations concerning KNBT and its businesses, properties or assets to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; a third party; (iiiii) KNBT may engage in discussions or negotiations with any Person a third party; (iii) following receipt of an Acquisition Proposal, KNBT may take and disclose to its shareholders a position with respect to any such Acquisition Proposal on Acquisition InquiryProposal; and/or (iv) approve, endorse or recommend any following receipt of an Acquisition Proposal, the KNBT Board of Directors may withdraw or modify its recommendation of with respect to this Agreement; or but in respect of the foregoing clauses (vi) execute or enter into any letter through (iv) only if the KNBT Board of intent or similar document or any Contract Directors shall conclude in good faith after consultation with its legal and financial advisors, that failure to do so would result in a breach by such directors of their fiduciary duties. KNBT shall (other than confidentiality agreements contemplated by this Section 4.3unless it believes, after consultation with its counsel, that such notification would violate the KNBT Board of Directors’ fiduciary duties) contemplating or otherwise relating notify NPB as promptly as practicable, in reasonable detail, as to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption inquiries and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response proposals relating to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, which it or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer its representatives or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementagents may receive. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company agrees that it shall not directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall --------------- immediately cease and cause to be terminated all existing discussions, negotiations and communications with any discussions prior Persons with respect to or any Acquisition Proposal. Except as of provided in Section 5.3(b), from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall not and shall not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants or other agents (collectively, "Representatives") to directly or indirectly (i) initiate, --------------- solicit or knowingly encourage, or knowingly take any action to facilitate the making of, any offer or proposal which constitutes or which may be reasonably likely to lead to any third-party Acquisition Proposal or (ii) enter into any agreement with respect to any Acquisition Proposal, or (iii) in the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any information or data to, any Person (other than Parent or any of its affiliates or representatives) relating to any Acquisition Proposal. Notwithstanding the foregoing, nothing contained in this Section 5.3 shall prohibit the Company or the Company Board of Directors from (x) in the event of an unsolicited Acquisition Proposal, requesting from the third party such information as may be reasonably necessary for the Company Board of Directors to inform themselves as to the material terms of such Acquisition Proposal for the sole purpose of determining whether such Acquisition Proposal constitutes a Superior Proposal, provided, that (i) the Company Board of Directors shall have determined, in good faith after being advised by outside legal counsel, that taking such action with respect to an Acquisition Proposal from such third party is necessary in order for the Company Board of Directors to discharge its fiduciary duties under applicable law and (ii) upon receipt of such information requested from the third party, neither the Company nor any of its Representatives shall be permitted to engage in any further discussion or negotiations with any such third party that would otherwise violate paragraph (a) of this Section 5.3, (y) taking (and disclosing to the Company's stockholders) its position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (z) making such disclosure to the Company's stockholders as in the good-faith judgment of the Company Board of Directors, after receipt of advice from outside legal counsel to the Company, that such disclosure is necessary for the Company Board of Directors to comply with its fiduciary duties under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person that relate pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (other than with respect to any standstill provision contained therein), dated May 29, 2001 entered into between Parent and the Company (the "Confidentiality Agreement") and may negotiate and participate ------------------------- in discussions and negotiations with such Person concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal is reasonably likely to be consummated (taking into account the legal aspects of the proposal, the Person making the Acquisition Proposal and approvals required in connection therewith); (y) such entity or group has on an unsolicited basis, and in the absence of any violation of this Section 5.3 by the Company, submitted a bona fide, fully financed, written proposal to the Company relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from the Company's financial advisors, is more favorable than the Offer to the Company's stockholders from a financial point of view, and (z) in the good faith opinion of the Company Board of Directors, after consultation with outside legal counsel to the Company, providing such information or access or engaging in such discussions or negotiations is in the best interests of the Company and its stockholders and necessary in order for the Company Board of Directors to discharge its fiduciary duties to the Company's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (x), (y) and (z) being referred to herein as a "Superior Proposal"). The Company shall promptly, ----------------- and in any event within two business days following receipt of a Superior Proposal and prior to providing any such party with any material non-public information, notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent, such additional information to be provided no later than the date of provision of such information to such other party. (c) Except as set forth herein, neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Transactions, to Parent or to the Purchaser, the approval or recommendation by the Company Board of Directors of the Offer, this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition InquiryProposal. Notwithstanding the foregoing, prior to the time of acceptance for payment of Shares in the Offer, the Company Board of Directors may (subject to the terms of this and the following sentence) withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or enter into an agreement with respect to a Superior Proposal (an "Acquisition Agreement"), in each case at any time after --------------------- the third business day following the Company's delivery to Parent of written notice advising Parent that the Company Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided, -------- however, that the Company shall not enter into an agreement with respect to a ------- Superior Proposal unless the Company complies with Section 5.3(d). (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, may terminate this Agreement and enter into an Acquisition Agreement with respect to such Superior Proposal, provided that, -------- prior to any such termination, (i) the Company has provided Parent written notice that it intends to terminate this Agreement pursuant to this Section 5.3(d), identifying the Superior Proposal or Acquisition Transaction then determined to which any be more favorable and the parties thereto and delivering a copy of the Acquired Corporations is Acquisition Agreement for such Superior Proposal in the form to be entered into, (ii) within a party or under which any period of three business days following the delivery of the Acquired Corporations has any rightsnotice referred to in clause (i) above, Parent does not propose adjustments in the terms and conditions of this Agreement and the Company shall have caused its financial and legal advisors to negotiate with Parent in good faith such proposed adjustments in the terms and conditions of this Agreement which the Company Board of Directors determines in its good faith judgment (after receiving the advice of its financial advisor) to be as favorable to the Company's stockholders as such Superior Proposal, and shall enforce or cause (iii) at least three full business days after the Company has provided the notice referred to be enforced each such agreement in clause (i) above, the Company delivers to Parent (A) a written notice of termination of this Agreement pursuant to this Section 5.3(d), and (B) a wire transfer of immediately available funds in the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any amount of the Acquired CorporationsTermination Fee (as defined in Section 8.2(b)).

No Solicitation. (a) The Company Ashland shall not not, nor shall it authorize or permit any Ashland Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, auditor or other advisor, agent or representative (collectively, "Representatives") of, Ashland or any Ashland Subsidiary to, and on becoming aware of it will use its reasonable best efforts to stop such Ashland Subsidiary or Representative from continuing to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage the making, submission or announcement of any Acquisition Competing Ashland Proposal or Acquisition Inquiry; (as defined in Section 8.02(e)), (ii) furnish enter into any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Competing Ashland Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (viii) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating into, continue or otherwise relating participate in any discussions or negotiations regarding, or furnish to any Acquisition Transactionperson any information with respect to, or cooperate with or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Ashland Proposal; provided, however, that, notwithstanding anything contained in this Section 4.3(aprior to receipt of the Ashland Shareholder Approval (the "Cutoff Date"), prior to the adoption Ashland and approval of this Agreement by the Required Stockholder Vote, the Company its Representatives may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition a bona fide written Competing Ashland Proposal that has been made by such Person (and not withdrawn)the Ashland Board determines, furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote(after consultation with its financial advisor, after having considered the advice of the Company’s outside legal inside counsel and the Financial Advisor that such Acquisition Proposal outside counsel), constitutes a Superior Offer or is reasonably likely to lead result in a Superior Proposal (as defined in Section 8.02(e)) that was not solicited by Ashland and that did not otherwise result from a breach or a deemed breach of this Section 8.02(a), and subject to compliance with Section 8.02(c), (x) furnish to the person making such Competing Ashland Proposal and its Representatives information with respect to Ashland, pursuant to a Superior Offer; customary confidentiality agreement that does not contain terms that prevent Ashland from complying with its obligations under this Section 8.02, and information with respect to MAP in accordance with the MAP Governing Documents and (3y) participate in discussions or negotiations with such person and its Representatives regarding any Competing Ashland Proposal. (b) Neither the board Ashland Board nor any committee thereof shall (i) withdraw or modify in a manner adverse to the Marathon Parties, or propose publicly to withdraw or modify in a manner adverse to the Marathon Parties, the adoption, approval or recommendation by the Ashland Board or any such committee of directors the Transaction Agreements or the Transactions or (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Competing Ashland Proposal. Notwithstanding the foregoing, if, prior to the Cutoff Date, the Ashland Board determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with inside and outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such PersonLaw, the Company gives Parent written notice Ashland Board may withdraw its adoption, approval or recommendation of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, Transaction Agreements and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoTransactions. (c) The Company Ashland promptly shall immediately cease and cause to be terminated advise Marathon in writing of any discussions prior Competing Ashland Proposal or any inquiry with respect to or as that would reasonably be expected to lead to any Competing Ashland Proposal and the identity of the date of this Agreement with person making any Person that relate to any Acquisition such Competing Ashland Proposal or Acquisition Inquiryinquiry and, in the case of a Competing Ashland Proposal referred to in clause (i) or (ii) of the definition of "Competing Ashland Proposal", the material terms and conditions of such Competing Ashland Proposal or inquiry, if any, that would reasonably be expected to prevent or materially delay the Transactions or, in the case of a Competing Ashland Proposal referred to in clause (iii) of the definition of "Competing Ashland Proposal", all material terms and conditions of such Competing Ashland Proposal or inquiry, if any. Ashland shall keep Marathon reasonably informed on a timely basis of the status and, in the case of a Competing Ashland Proposal referred to in clause (i) or (ii) of the definition of "Competing Ashland Proposal", the details of such Competing Ashland Proposal or inquiry, if any, that would reasonably be expected to prevent or materially delay the Transactions or, in the case of a Competing Ashland Proposal referred to clause (iii) of the definition of "Competing Ashland Proposal", all the details of any such Competing Ashland Proposal or inquiry, if any. After the Cutoff Date, Ashland shall not be required to comply with this Section 8.02(c) in any instance to the extent that the Ashland Board determines in good faith, after consultation with inside and outside counsel, that such compliance would in such instance be reasonably likely to result in a breach of its fiduciary obligations under applicable Law. (d) The Company Nothing contained in this Agreement shall not release or permit prohibit Ashland from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the release Exchange Act (other than a position recommending acceptance under Rule 14e-2(a)(1) of any Person froma tender offer constituting a Competing Ashland Proposal) if, or waive or permit in the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any good faith judgment of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rightsAshland Board, after consultation with inside and shall enforce or cause outside counsel, failure so to disclose would be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection inconsistent with its consideration obligations under applicable Law. (e) For purposes of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.this Agreement:

No Solicitation. (a) The Company Each of the Stockholder, the KKR Investors and the GA Investors hereby agree that it shall not directly or indirectly donot, and shall ensure that no Representative of any of the Acquired Corporations cause its respective Affiliates and shall use its reasonable best efforts to cause its and its respective Affiliates’ Representatives not to, directly or indirectly doesindirectly, any of the following: (i) solicit, initiate, knowingly encourageinduce, induce knowingly encourage or knowingly facilitate any inquiries or the making, submission or announcement making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal or Acquisition InquiryProposal; (ii) furnish participate in any discussions or negotiations with any Person regarding any proposal the consummation of which would constitute a Company Acquisition Proposal; (iii) provide any non-public information regarding or data concerning the Company or any of the Acquired Corporations its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any proposal the consummation of which would constitute a Company Acquisition Proposal; or (viv) execute approve or recommend, make any public statement approving or recommending, or enter into any letter agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal. Each of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder VoteStockholder, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel KKR Investors and the Financial Advisor GA Investors agree that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company it shall immediately cease and cause to be terminated any terminated, and cause its respective Affiliates and shall use its reasonable best efforts to cause its and its respective Affiliates’ Representatives to immediately cease and cause to be terminated, all discussions prior to or as of the date of this Agreement negotiations with any Person that relate conducted heretofore with any Person other than Parent and/or its Representatives with respect to any Company Acquisition Proposal. Notwithstanding the foregoing, each of the Stockholder, the KKR Investors or the GA Investors, directly or indirectly through their respective Affiliates, Representatives, advisors or other intermediaries, may, prior to the time, but not after, the Company Stockholder Approval is obtained, engage in negotiations or discussions with any Person (and its Representatives, advisors and intermediaries) that has made an unsolicited bona fide written Company Acquisition Proposal to the Company, its Subsidiaries or Representatives not resulting from or arising out of a breach, in any material respect, of (x) this Section 5.2 or (y) the provisions of Section 5.2 of the Merger Agreement; provided, that each of the Stockholder, the KKR Investors or the GA Investors, directly or indirectly through their respective Affiliates, Representatives, advisors or other intermediaries, shall be permitted to engage in such negotiations or discussions if, and only if, prior to doing so, the Stockholder, the KKR Investors or the GA Investors, as applicable, have provided prior written notice thereof to Parent and the Company Board determines in good faith after consultation with outside legal counsel that (A) based on the information then available and after consultation with a financial advisor of nationally recognized reputation that such Company Acquisition InquiryProposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal and (B) the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. (db) The Company Until this Agreement is terminated in accordance with its terms, the Stockholder, the KKR Investors and the GA Investors shall not release (and shall cause their respective Affiliates to whom they have provided confidential information regarding the Company (or permit its Subsidiaries) or the release of any Person fromMerger, not to), directly or indirectly, (i) alone or in concert with others, make or propose, or seek to make or propose, to the Company or any of its stockholders any Company Acquisition Proposal, (ii) make any public request or public proposal to amend, waive or permit terminate the waiver provisions of this Section 5.2(b) or (iii) take any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement action that would reasonably be expected to result in connection with, relating to, or which could be deemed the Company having to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which make a public announcement regarding any of the Acquired Corporations is a party matters referred to in clauses (i) and (ii) of this Section 5.2(b), or under which publicly announce an intention to do, or enter into any arrangement or understanding or discussion with others to do, any of the Acquired Corporations has actions restricted or prohibited under such clauses (i) and (ii) of this Section 5.2(b); provided, however, that the provisions set forth in Section 3.1 of the Stockholder Agreement shall not in any rightsway restrict or otherwise affect the Stockholder’s, and shall enforce the KKR Investors’ or cause the GA Investors’ ability to be enforced each such agreement take any of the actions set forth in the third sentence of Section 5.2(a) to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationspermitted therein.

No Solicitation. (a) The From the date hereof until the termination hereof, the Company shall will not, and will cause its Subsidiaries and the officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents or advisors ("REPRESENTATIVES") of the Company and its Subsidiaries not to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) take any action to solicit, initiate, knowingly encourage, induce facilitate or knowingly facilitate encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; Proposal, (ii) furnish engage in any non-public discussions or negotiations with, or disclose any nonpublic information regarding relating to the Company or any of its Subsidiaries or afford access to the Acquired Corporations to properties, books or records of the Company or any of its Subsidiaries to, any Person in connection with who may be considering making, or in response to has made, an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions grant any waiver or negotiations with release under any Person standstill or similar agreement with respect to any class of equity securities of the Company, PROVIDED that the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person who delivers an Acquisition Proposal on Acquisition Inquiry; if (ivw) approvethe Company has complied with the terms of this Section 6.03, endorse or recommend including, without limitation, the requirement in Section 6.03(b) that it notify Parent promptly after its receipt of any Acquisition Proposal; or , (vx) execute or enter into any letter the Board of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval Directors of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by a majority vote, after having considered on the basis of advice of the Company’s from outside legal counsel and to the Financial Advisor Company that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; law, (4y) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed executes a confidentiality agreement containing provisions at least as with terms no less favorable to the Company as than those contained in the Confidentiality Agreement; confidentiality agreement dated June 30, 1998 between the Company and Tyco (the "CONFIDENTIALITY AGREEMENT") and (6z) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes shall have delivered to Parent a prior written notice advising Parent that it intends to take such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementaction. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the The Company shall will notify Parent promptly (and but in no event later than 48 hours 24 hours) after receipt by the Company (or any of such its advisors) of any Acquisition Proposal, any indication that a Person is considering making an Acquisition Proposal or of any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person that informs the Board of Directors of the Company that is considering making, or has made, an Acquisition Inquiry) advise Parent Proposal. The Company shall provide such notice orally and in writing of and shall identify the material terms and conditions of, any such Acquisition Proposal Proposal, indication or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)request. The Company shall keep Parent fully informed with respect to informed, on a current basis, of the status and material terms of any such Acquisition Proposal Proposal, indication or request. The Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions or negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Inquiry and any modification or proposed modification theretoProposal. (c) The Company shall immediately cease and cause to be terminated any existing discussions prior or negotiations with any Persons (other than Parent and Merger Subsidiary) conducted heretofore with respect to or as any of the date foregoing. The Company agrees not to release any third party from the confidentiality provisions of this Agreement with any Person that relate agreement to any Acquisition Proposal or Acquisition Inquirywhich the Company is a party. (d) The Company shall not release or permit ensure that the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any officers and directors of the Acquired Corporations is a party Company and the Company's Significant Subsidiaries and any investment banker or under which any other advisor or representative retained by the Company are aware of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement restrictions described in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Section 6.03.

No Solicitation. (a) The Company Except as expressly permitted by this Section 4.3, during the Pre-Closing Period the Acquired Companies shall cause their Representatives not to, directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicitcontinue any solicitation, initiateknowing encouragement, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person Persons that may be ongoing with respect to an Acquisition Proposal, (ii) (A) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any information in connection with an Acquisition Proposal on or any proposal or offer that could reasonably be expected to lead to an Acquisition Inquiry; Proposal, or (ivC) adopt, approve, endorse or recommend any Acquisition Proposal; or (v) execute endorse, recommend, declare advisable or enter into any letter of intent intent, memorandum of understanding, agreement in principle, term sheet or similar document agreement, whether binding or nonbinding, or any Contract (other than confidentiality agreements contemplated by this an Acceptable Confidentiality Agreement permitted to be executed pursuant to Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a4.3(b)), prior in each case, with respect to, or that could reasonably be expected to the adoption and approval of this Agreement by the Required Stockholder Votelead to, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal or that has been made by such would reasonably be expected to cause the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions, (iii) waive or release any Person from, forebear in the enforcement of or amend any standstill agreement or any standstill provisions of any other Contract, or take any action to exempt any Person (other than Parent, Merger Sub or their Affiliates) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the organizational and not withdrawn)other governing documents of an Acquired Company, furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, unless in the case of each this clause (iii), the Board of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors Directors determines in good faith by majority votefaith, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of consultation with the Company’s outside legal counsel, that the failure to take such action do so would be reasonably likely to result in a breach inconsistent with the fiduciary duties of its fiduciary obligations the Board of Directors to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing Requirements and notifies Parent of any such nonpublic information torelease, forbearance or amendment within one Business Day thereof, or entering into discussions (iv) resolve or negotiations with, such Personpublicly propose to take any of the actions set forth in the foregoing clauses (i) through (iii) of this Section 4.3(a). As promptly as reasonably practicable (and in any event within one Business Day) following the Agreement Date, the Company gives Parent written notice shall terminate access to any data room or similar facility established by the Company or its Representatives in connection with a potential Acquisition Proposal (including the process that culminated in the execution and delivery of this Agreement) and request (unless such a request was previously made by an Acquired Company before the identity execution and delivery of such this Agreement) the prompt return or destruction of all non-public information previously furnished to any Person (other than Parent, ▇▇▇▇▇▇ Sub and of the Company’s their respective Representatives) that has since December 1, 2023 made or indicated an intention to furnish nonpublic information to, make an Acquisition Proposal or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed a confidentiality agreement containing provisions at least as favorable to in connection with its consideration of an Acquisition Proposal (or the Company as those contained process that culminated in the Confidentiality execution and delivery of this Agreement; and (6) concurrently with furnishing ). The Company shall be fully responsible for any such nonpublic information to such Person, action taken by its or the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees other Acquired Companies’ Representatives that, in the event any Representative of any of the Acquired Corporations (whether or not had such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if been taken by the Company, would constitute a breach of this Section 4.3 by the Company4.3, the taking of and any such action taken by such any Representative of an Acquired Company shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this AgreementCompany. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry Notwithstanding anything in this Agreement to the contrary, if at any time during after the execution and delivery of this Agreement and prior to the receipt of the Company Stockholder Approval (the “Cut-off Time”) any Acquired Company or its Representatives receives a bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made or renewed after the execution and delivery of this Agreement and did not arise out of or result from a breach of this Section 4.3 or of Section 5.1, and the Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that (i) such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Offer, and (ii) the failure to take such action described in clauses (x) or (y) of this Section 4.3(b) would be inconsistent with the fiduciary duties of the Board of Directors to the Company’s stockholders under applicable Legal Requirements, then the Company and its Representatives may, until the Cut-off Time, (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Acquired Companies to the Person or group of Persons who has made such Acquisition Proposal and the Representatives of such Person or group of Persons; provided that the Company shall as promptly as practicable (and in any event within 24 hours) provide to Parent any non-public information concerning the Acquired Companies that is provided to any Person to the extent access to such information is not then available to Parent and its Representatives, and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal and the Representatives of such Person or group of Persons. If the Board of Directors makes any determination described in the foregoing clauses (i) and (ii) of this Section 4.3(b) or initially takes any action set forth in the foregoing clauses (x) or (y) of this Section 4.3(b), the Company shall notify Parent within 24 hours thereof. (c) During the Pre-Closing Period, then the Company shall (i) promptly (and in no any event later than 48 within 24 hours after receipt of such thereof by an Acquired Company) notify Parent if any request, inquiry, proposal or offer with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal is received by any Acquired Company or Acquisition Inquiryany Representative thereof and provide to Parent (w) advise Parent orally and in writing copies of such Acquisition Proposal any written request, inquiry, proposal, offer or Acquisition Inquiry other materials, including proposed agreements (including any proposed term sheet, letter of intent, acquisition agreement, financing commitments or similar agreements with respect thereto) received in connection therewith, (x) a summary of any material unwritten terms and conditions thereof, (y) a summary of the nature of any information requested, and (z) the identity of the Person or each member in the group of Persons making such request, inquiry, proposal or submitting offer, (ii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any such request, inquiry, proposal, offer or Acquisition Proposal (including by furnishing copies of any further requests, inquires or proposals or amendments thereto) on a prompt basis (and in any event within 24 hours of such material development, discussion or negotiation), and (iii) upon the request of Parent, reasonably inform Parent of the status of such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition InquiryProposal. (d) The Nothing in this Section 4.3 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including any “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or (ii) making any disclosure to the stockholders of the Company that the Board of Directors determines, after consultation with outside counsel, is required by applicable Legal Requirements; provided, however, that nothing in this Section 4.3(d) shall not release or permit the release Board of any Person fromDirectors to make a Company Adverse Recommendation Change and, or waive or permit unless the waiver Board of any provision Directors has made a Company Adverse Recommendation Change in accordance with the provisions of or right underSection 5.1(b) that remains in effect and has not been withdrawn, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of such disclosure shall state that the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause Company Board Recommendation continues to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationseffect.

No Solicitation. (a) The Each of Parent and the Company shall and their respective Subsidiaries will not, and Parent and the Company will direct and use their respective best efforts to cause their and their Subsidiaries' respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly doindirectly, and shall ensure that no Representative of take any of the Acquired Corporations directly or indirectly does, any of the following: (i) action to solicit, initiate, knowingly encourage, induce encourage or knowingly facilitate the making, submission or announcement making of any Acquisition Proposal (including without limitation by amending, or Acquisition Inquiry; (iigranting any waiver under, the Parent Rights Agreement or the Company Rights Agreement, as applicable) furnish or any non-public information regarding any of the Acquired Corporations to any Person in connection inquiry with respect thereto or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect thereto, or disclose any nonpublic information or afford access to properties, books or records to, any Acquisition Proposal on Acquisition Inquiry; (iv) approvePerson that has made, endorse or recommend to such party's knowledge, is considering making, any Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of Parent or the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of such party shall not recommend that the stockholders of such party tender their shares in connection with a tender offer or (v) execute or enter into any letter exchange offer except to the extent that, after receiving a Superior Proposal, such Board of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; providedDirectors of such party determines in its good faith judgment, howeverafter receiving the advice of outside legal counsel, that, notwithstanding in light of such Superior Proposal, failure to make such a recommendation would be reasonably likely to be inconsistent with fulfilling the fiduciary duties of the Board of Directors to such party's stockholders under applicable law and such party shall have complied with the procedure set forth in Section 5.2 or 6.4, to the extent applicable. Notwithstanding anything contained to the contrary in this Section 4.3(a)Agreement, prior to the adoption and date of approval of this Agreement and the Merger by the Required Stockholder Votestockholders of Parent or the Company, as applicable, Parent or the Company may, may (A) furnish information and access to a third party, but only in response to a request for information or access, to any Person making an Acquisition Inquiry that has been made Proposal to the board of directors of Parent or the Company, as applicable, after the date hereof which was not knowingly encouraged, solicited or initiated by such Person Parent or the Company, as applicable, or any of its affiliates or any director, employee, representative or agent of Parent or the Company, as applicable, or any of its respective Subsidiaries (and not withdrawn)including, furnish nonpublic information regarding without limitation, any investment banker, attorney or accountant retained by Parent or the Acquired Corporations to such Person, Company or any of its Subsidiaries) on or after the date hereof and (B) may participate in response to an Acquisition Proposal that has been made by discussions and negotiate with such Person (concerning any such Acquisition Proposal, if and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Persononly if, in the any such case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in clause A or B of this Section 4.3; paragraph, (2i) the board Board of directors determines Directors of Parent or Company, as applicable, concludes in good faith by majority votefaith, after having considered receipt of the advice of the Company’s outside legal counsel a financial advisor of nationally recognized reputation and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be Acquisition Proposal is reasonably likely to result in a breach of its fiduciary obligations Superior Proposal with respect to Parent or the Company’s stockholders under applicable Legal Requirements; , as applicable, (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5ii) the Company or Parent, as applicable, complies with all of its obligations under this Agreement, and (iii) the board of directors of Parent or the Company, as applicable, receives from the Person making such Person an Acquisition Proposal an executed confidentiality agreement containing provisions at least as the material terms of which are (without regard to the terms of such Acquisition Proposal) in all material respects (x) no less favorable to the Company or Parent, as applicable, and (y) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives Any party receiving an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall will (A) promptly (and in no event later than 48 hours after receipt of such any Acquisition Proposal or Acquisition InquiryProposal) advise Parent notify (which notice shall be provided orally and in writing of and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof) the other party to this Agreement after receipt of any Acquisition Proposal, any indication of which such party has knowledge that any Person is considering making an Acquisition Proposal, or any request for nonpublic information relating to such party or any Subsidiary of such party or for access to the properties, books or records of such party or any Subsidiary of such party by any Person that has made, or to such party's knowledge may be considering making, an Acquisition Inquiry Proposal, and (B) will keep the other party to this Agreement informed of the status and material terms of (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect all changes to the status and or material terms of of) any such Acquisition Proposal or Acquisition Inquiry request. Each of Parent and any modification or proposed modification thereto. the Company (cx) The Company shall, and shall cause their respective Subsidiaries to, immediately cease and cause to be terminated any and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to or as of the date of this Agreement hereof with any Person that relate Persons with respect to any Acquisition Proposal or Acquisition Inquiry. and (dy) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person Person, if any, that has executed a confidentiality or similar agreement within the 9 months prior to the date hereof in connection with its consideration of a possible any Acquisition Transaction or equity investment Proposal to return to the Acquired Corporations or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of the Acquired Corporationsits Subsidiaries.

No Solicitation. (a) The Company OrthAlliance agrees that it and its Subsidiaries, officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants and agents shall not not, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) encourage, solicit, initiate, knowingly encouragefacilitate, induce entertain or knowingly facilitate the making, submission or announcement of accept any Acquisition Proposal or Acquisition Inquiry; Proposal, (ii) furnish enter into any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Proposal on or enter into any arrangement, understanding or agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (iii) propose or make any Acquisition Inquiry; Proposal to any Person other than OCA and OCA Merger Sub, (iv) approveparticipate in any way in discussions or negotiations with, endorse or recommend furnish or disclose any information to, any Person (other than OCA and OCA Merger Sub) in connection with or with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; , or (v) execute authorize or enter into permit its Subsidiaries, officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants and agents to do any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transactionthe foregoing; provided, however, thatthat OrthAlliance, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an unsolicited, bona fide, written Acquisition Inquiry that has been made by such Person (Proposal, may, after giving notice to OCA and not withdrawn)without limiting OrthAlliance's obligations under Section 8.4, furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, take one or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any more of the provisions set forth in this Section 4.3; (2) following actions if the board Board of directors Directors of OrthAlliance determines in good faith by majority vote, after having considered that the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action or actions would be reasonably likely to result in a breach of its violate the fiduciary obligations to the Company’s stockholders of such Board of Directors under applicable Legal Requirements; law: (41) at least two business days prior to furnishing any participate or engage in such nonpublic information to, or entering into discussions or negotiations with, such Person, with the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of making such Acquisition Proposal or regarding such unsolicited, bona fide, written Acquisition InquiryProposal, (2) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce provide or cause to be enforced each such agreement provided information to the extent requested by Parent. The Company shall promptly request each Person that has executed making such Acquisition Proposal (pursuant to a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished terms not more favorable to such Person by or on behalf of any third party than the terms of the Acquired Corporations.Confidentiality Agreement between OrthAlliance and OCA), and (3) authorize and permit its officers, directors, employees, representatives, investment bankers, attorneys, accountants, financial advisors and agents to take

No Solicitation. (a) The Company agrees that, prior to the Effective Time, it shall not directly or indirectly donot, and shall ensure that no Representative not authorize or permit any Company Subsidiaries or any of their Representatives, directly or indirectly, to solicit, initiate or encourage any discussions or inquiries or the making of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person proposal with respect to any Acquisition merger, consolidation or other business combination involving the Company or the Company Subsidiaries or acquisition of 10% or more of the assets or capital stock of the Company and the Company Subsidiaries taken as a whole (a "TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in substantive discussions with any Person (other than Buyers) with respect to any Takeover Proposal on Acquisition Inquiry; (ivit being understood that the passive receipt of communications from third parties shall not be deemed participation in discussions or negotiations) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger; PROVIDED, HOWEVER, that if the Board of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; providedDirectors of the Company and the Special Committee determine in good faith, howeverafter consultation with independent outside legal counsel, that, notwithstanding anything contained in this Section 4.3(a), that prior to obtaining the adoption and approval of this Agreement by Requisite Company Vote, it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Required Stockholder VoteCompany's stockholders under applicable law, the Company may, (A) prior to obtaining the Requisite Company Vote, in response to an Acquisition Inquiry that has been made a Takeover Proposal, which proposal is supported by such Person (fully committed financing, was not solicited by it and which did not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly otherwise result from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company5.8, the taking and subject to providing prior written notice of its decision to take such action by such Representative shall be deemed to constitute a breach Buyers and compliance with the other requirements of this Section 4.3 5.8, (i) furnish information with respect to the Company and the Company Subsidiaries to any Person making such Takeover Proposal pursuant to a customary confidentiality agreement (as determined in good faith by the Company for purposes based on the advice of this Agreementits independent outside legal counsel) and (ii) participate in discussions or negotiations regarding such Takeover Proposal. (b) If any Acquired Corporation or any Representative Except in connection with a Superior Proposal, provided that there has been no violation of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during this Section 5.8, neither the Pre-Closing Period, then Board of Directors of the Company nor any committee thereof shall promptly (and i) withdraw or modify, or propose publicly to withdraw or modify, in no event later than 48 hours after receipt a manner adverse to Buyers, the approval or recommendation by the Board of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity Directors of the Person making Company or submitting such committee of this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoAgreement. (c) The Company shall immediately cease promptly advise Buyers orally and cause to be terminated in writing of any discussions prior to or as request for information of the date type referred to in Section 5.8(a) or of this Agreement with any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the Person that relate to making such request or Takeover Proposal. The Company will keep Buyers informed of the status and details (including amendments or proposed amendments) of any Acquisition Proposal such request or Acquisition InquiryTakeover Proposal. (d) The Nothing contained in this Section 5.8 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with independent outside legal counsel and based as to legal matters on the written advice of the Company's independent outside legal consent, failure so to disclose would be inconsistent with its obligations under applicable law; PROVIDED, HOWEVER, that, except as contemplated by Section 5.8(b), neither the Company nor the Board of Directors of the Company nor any committee thereof shall not release withdraw or permit the release of any Person frommodify, or waive propose publicly to withdraw or permit modify, its position with respect to this Agreement, the waiver of any provision of Offer or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating toMerger, or which could be deemed approve or recommend, or propose publicly to relate to approve or facilitaterecommend, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsTakeover Proposal.

No Solicitation. (a) The From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 5.8, the Company shall not will not, nor will it permit any Company Subsidiary to, nor will it authorize or permit any officer, director or employee of the Company or any Company Subsidiary and each investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage the making, submission or announcement of any Acquisition Proposal (as hereinafter defined) or Acquisition Inquiry; (ii) participate in any discussions or negotiations regarding, or furnish any non-public information regarding any of the Acquired Corporations to any Person in connection person any information with respect to, or in response take any other action to facilitate, an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions any inquiries or negotiations with the making of any Person with respect proposal that constitutes, or may reasonably be expected to any Acquisition Proposal on Acquisition Inquiry; (iv) approvelead to, endorse or recommend any an Acquisition Proposal; or (v) execute or enter into any letter PROVIDED, HOWEVER, that subject to compliance by the Company with the provisions of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a5.8(b), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board 's Board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to Directors may furnish nonpublic information to, or enter into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Company's Board of Directors, after consultation with its outside legal counsel, determines in good faith that such Person; action is legally advisable for the Company's Board of Directors to comply with its fiduciary duties to the Company's stockholders under applicable Law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company's Board of Directors after consultation with a nationally recognized financial advisor, reasonably capable of being financed, (C) the Company's Board of Directors determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant including after consultation with a nationally recognized financial advisor, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (5D) prior to taking such action, the Company (x) provides reasonable notice to Parent to the effect that it is taking such action and (y) receives from such Person person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementreasonably customary form. (b) If Prior to providing any Acquired Corporation information to or entering into discussions with any Representative of any Acquired Corporation receives person in connection with an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Periodby a person as set forth in Section 5.8(a), then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise notify Parent orally and in writing of such any Acquisition Proposal or Acquisition Inquiry (including including, without limitation, the material terms and conditions thereof and the identity of the Person person making it) or any inquiries indicating that any person is considering making or submitting such wishes to make an Acquisition Proposal, as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or Acquisition Inquiryamendments or supplements thereto, and shall thereafter inform Parent on a prompt basis of (x) the status of any discussions or negotiations with any such third party, and any material changes to the terms thereof). The Company and conditions of such Acquisition Proposal, and shall keep promptly give Parent fully informed with respect to the status and terms a copy of any information delivered to such Acquisition Proposal person which has not previously been reviewed by Parent and (y) any request by any person for nonpublic information relating to its or Acquisition Inquiry and any modification Company Subsidiaries' properties, books or proposed modification theretorecords. (c) Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. The Company shall immediately cease and cause agrees that it will take the necessary steps to be terminated any discussions prior promptly inform the individuals or entities referred to or as in the first sentence of Section 5.8(a) of the date of obligations undertaken in this Agreement with any Person that relate to any Acquisition Proposal or Acquisition InquirySection 5.8. (d) The Company's Board of Directors will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger except in connection with a Superior Proposal; PROVIDED, THAT, neither the Company nor the Board of Directors of the Company may in such instance terminate this Agreement but instead the Company, at the option of and as directed by the Parent (in addition to the rights of Parent as set forth in Section 7.1(d)), shall, notwithstanding such withdrawal or modification of the recommendation or approval of this Agreement or the Merger by the Company's Board of Directors and/or the recommendation by the Company's Board of Directors that the Company's stockholders reject this Agreement or the Merger at the Company Stockholder Meeting, submit approval of this Agreement and the Merger as promptly as practicable to a vote of the holders of Company Shares at the Company Stockholders Meeting as contemplated by this Agreement, it being understood and agreed that, Parent, Company and Merger Sub elect that this Agreement to be governed by the second sentence of Section 251(c) of the GCL. If the Parent exercises its option under this Section 5.8(d) to require the Company to submit this Agreement to its stockholders for approval, the Parent shall no longer be entitled to terminate this Agreement under Section 7.1(d) hereof; PROVIDED, that the foregoing shall not release limit the Parent's right to (i) terminate this Agreement under Section 7.1(e)(i) if notwithstanding the exercise of the option by the Parent to require the Company to submit this Agreement to the Company's stockholders for approval, this Agreement and the Merger fails to obtain the Requisite Company Vote at the Company's Stockholders Meeting and (ii) receive the amounts that are otherwise payable upon a termination of this Agreement pursuant to Section 7.1(e)(i) as provided in Section 7.5(b). (e) Nothing contained in this Section 5.8 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or permit from making any disclosure to the release Company's stockholders if, in the good faith reasonable judgment of any Person fromthe Company's Board of Directors, after consultation with outside legal counsel, that failure to so disclose would be inconsistent with its obligations under applicable law. (f) For purposes of this Agreement, "ACQUISITION PROPOSAL" means an inquiry, offer or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which proposal regarding any of the Acquired Corporations is following (other than the Transactions contemplated by this Agreement) involving the Company or any Company Subsidiary: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of the Company and the Company Subsidiaries, taken as a party whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for fifteen percent (15%) or more of the outstanding shares of Company Common Stock or the filing of a registration statement under which the Securities Act in connection therewith; or (iv) any public announcement of a proposal or plan to do any of the Acquired Corporations has foregoing or any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement engage in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsforegoing.

No Solicitation. (a) The Company From and after the date hereof until the termination of this Agreement, Beacon Federal shall not directly or indirectly donot, and shall ensure that no Representative not authorize or permit any Beacon Federal Subsidiary or any of their respective officers, directors, employees, representatives, agents and affiliates (including, without limitation, any investment banker, attorney or accountant retained by Beacon Federal or any of the Acquired Corporations Beacon Federal Subsidiaries), directly or indirectly does, any of the following: (i) solicitindirectly, initiate, knowingly encourage, induce solicit or knowingly facilitate the making, submission or announcement encourage (including by way of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any furnishing non-public information regarding or assistance) any inquiries or the making of the Acquired Corporations any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any Person in connection with furtherance of such inquiries or in response to obtain an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions agree to or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; , provided, however, that, notwithstanding anything that nothing contained in this Section 4.3(a), 6.11 shall prohibit the Board of Directors of Beacon Federal from (i) complying with its disclosure obligations under federal or state law; or (ii) prior to the adoption and approval of this Agreement by time that the Required Stockholder VoteBeacon Federal shareholders meeting has occurred, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, any Person or entity that makes an unsolicited Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors of Beacon Federal determines in good faith (after consultation with its financial and legal advisors), taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, that such Personproposal, if consummated, is reasonably likely to result in a transaction more favorable to Beacon Federal’s shareholders from a financial point of view than the Merger; and (B) such Acquisition Proposal was not solicited by Beacon Federal and did not otherwise result from a breach of this Section 6.11 by Beacon (such proposal that satisfies clauses (A) and (B) being referred to herein as a “Superior Proposal”); and provided, further, nothing contained in this Agreement shall prohibit Beacon Federal from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) or taking and disclosing to its shareholders a position as required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or (ii) otherwise disclosing any information to its shareholders that the Board of Directors of Beacon Federal determines in good faith (after consultation with its outside legal counsel) that it is required to disclose in order to not breach its fiduciary duties to Beacon Federal’s shareholders under applicable law, subject to compliance with the requirements of this Section 6.11. Beacon Federal shall promptly, but in no event later than two (2) calendar days, notify BHLB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Beacon Federal or any of its representatives indicating, in connection with such notice, the Company gives Parent written notice of the identity name of such Person and the material terms and conditions of the Company’s intention to furnish nonpublic information toany inquiries, proposals or enter into discussions or negotiations withoffers, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable in form and substance identical in all material respects to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to ParentAgreements. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for For purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company shall not not, nor shall it permit any of its Subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries (collectively, the “Representatives”) to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, solicit or initiate or take any other action knowingly to facilitate or encourage, induce any Takeover Proposal (as defined below) or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information regarding with respect to, any Takeover Proposal except to notify such Person of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter existence of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transactionprovision; provided, however, that, notwithstanding anything contained in this Section 4.3(a), at any time prior to obtaining the adoption and approval Company Shareholder Approval, the Board of this Agreement by the Required Stockholder Vote, Directors of the Company may, (A) in response to an Acquisition Inquiry a bona fide unsolicited, written Takeover Proposal made after the date of this Agreement that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors Company determines in good faith by majority vote, after having considered the advice of the Company’s consultation with its outside legal counsel and the Financial Advisor that such Acquisition Proposal financial advisor constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; Proposal (3) as defined below), and that did not result from a breach of this Section 4.2, provided the board Board of directors determines Directors of the Company shall have determined in good faith by majority vote, after having considered the advice of the Company’s consultation with its outside legal counsel, counsel that the failure to take such action would be reasonably likely to result in a breach of be inconsistent with fulfilling its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; law, and subject to compliance with Sections 4.2(c) and (4) at least two business days prior to furnishing any such nonpublic information tod), or entering into discussions or negotiations with, such Person, the Company gives and after providing Parent written advance notice of the identity of such Person and of the Company’s intention to take such actions (A) furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable with respect to the Company and its Subsidiaries to the Person (and its representatives) making such Takeover Proposal pursuant to a customary confidentiality agreement no less restrictive on such Person than the confidentiality agreement in effect between the Company and Parent (as those contained in it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information not previously provided to Parent is provided on a prior or substantially concurrent basis to Parent, except to the extent such information would be reasonably likely to result in competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated or such disclosure is prohibited by applicable Governmental Entities or pursuant to applicable laws, in each case relating to the exchange of information (“Prohibited Information”), and (6) concurrently so long as no information is provided to the Person making such Takeover Proposal that would constitute Prohibited Information with furnishing any such nonpublic information respect to such Person, and (B) participate in discussions or negotiations with the Company furnishes Person (and its representatives) making such nonpublic information to ParentTakeover Proposal regarding such Takeover Proposal. Without limiting the generality foregoing, it is agreed that any violation of the foregoing, restrictions set forth in the preceding sentence by any Representative or Affiliate of the Company acknowledges and agrees that, in the event any Representative of or any of the Acquired Corporations (its Subsidiaries, whether or not such Representative Person is purporting to act on behalf of the Company or any of the Acquired Corporations) takes any action thatits Subsidiaries or otherwise, if taken by the Company, would constitute shall be deemed to be a breach of this Section 4.3 4.2(a) by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as As of the date hereof, the Company has, and has caused each of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any its Subsidiaries and each of the Acquired Corporations is a party Representatives to have terminated all discussions or under which negotiations with all third parties regarding any of the Acquired Corporations has any rights, Takeover Proposal and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.the

No Solicitation. (a) The During the period from the date hereof until the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall not directly or indirectly donot, and shall ensure that no Representative of any of the Acquired Corporations cause its Subsidiaries and its and its Subsidiaries’ respective officers, directors, employees not to, and shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly does, any of the following: indirectly: (i) initiate, solicit, initiatepropose, knowingly encourage, induce encourage (including by way of furnishing non-public information about the Company and its Subsidiaries) or knowingly take any action designed to facilitate any inquiry regarding, or the makingmaking of any inquiry, submission proposal or announcement of offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify whether such proposal or offer constitutes an Acquisition Proposal); (ii) engage in, continue or otherwise participate in any discussions or negotiations relating to, or otherwise cooperate in any way with, any Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Inquiry; Proposal (iiother than to state that the terms of this Section 5.04 prohibit such discussions or negotiations, or discussions solely to clarify whether such proposal or offer constitutes an Acquisition Proposal); (iii) furnish any non-public information regarding relating to the Company or any of its Subsidiaries or afford access to the Acquired Corporations business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person Third Party in connection with any Acquisition Proposal or in response any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal Proposal; (iv) amend or Acquisition Inquiry; (iii) engage in discussions grant any waiver or negotiations with release under any Person standstill, confidentiality or similar agreement with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse Shares or recommend any Acquisition Proposal; or (v) execute or enter into any letter other equity securities of intent or similar document the Company or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transactionof its Subsidiaries; provided, however, thatthat if, notwithstanding anything contained in this Section 4.3(a)and only if, prior to the adoption and approval of this Agreement by obtaining the Required Stockholder VoteApproval, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors Directors determines in good faith by majority votefaith, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s consultation with its outside legal counsel, that the failure to take amend or grant any waiver or release under any such action standstill, confidentiality or similar agreement would reasonably be reasonably likely expected to result in constitute a breach of its the directors’ fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such PersonDelaware Law, the Company gives Parent written notice may then amend or grant a waiver or release under such standstill, confidentiality or similar agreement, solely to the extent necessary to permit a Third Party or group thereof to make, on a confidential basis to the Board of the identity Directors, an Acquisition Proposal, conditioned upon such Third Party (or group) agreeing to disclosure of such Acquisition Proposal to Parent as contemplated by this Section 5.04; (v) exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in any restrictive provision of the Company’s intention to furnish nonpublic information toorganizational documents or in Section 203 of the DGCL (or similar provisions of any other “control share acquisition,” “fair price,” “moratorium” or other antitakeover or similar statute or regulation), including approving any transaction under, or a Third Party becoming an “interested stockholder” under, Section 203 of the DGCL; Table of Contents (vi) enter into discussions any Alternative Acquisition Agreement (other than a confidentiality agreement contemplated by the second proviso in Section 5.04(b)(i)); or (vii) otherwise knowingly facilitate any effort or negotiations withattempt to make an Acquisition Proposal or any inquiry, such Person; and (5) proposal or offer that could reasonably be expected to lead to an Acquisition Proposal. For the avoidance of doubt, any breach of this Section 5.04 by a Representative of the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of or any of the Acquired Corporations its Subsidiaries (whether or not such Representative Person is purporting to act on behalf of any of the Acquired CorporationsCompany or such Subsidiary) takes any action that, if taken by the Company, would constitute shall be deemed a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 5.04 by the Company for purposes of this Agreementas if such Representative were “the Company” hereunder. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. The Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, (a) The solicit, initiate or encourage (including by way of furnishing information), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined), or (b) agree to or endorse any Takeover Proposal. Notwithstanding the immediately preceding sentence, if the Company shall not directly or indirectly do, and shall ensure that no Representative of any have breached the covenant provided by clause (a) of the Acquired Corporations directly immediately preceding sentence and a Takeover Proposal, or indirectly doesa written expression of interest that can reasonably be expected to lead to a Takeover Proposal, any shall occur, then, upon the good faith determination of the following: Board of Directors of the Company, acting upon the advice of its legal and financial advisors, that the Takeover Proposal is a better offer than the transactions contemplated by this Agreement and consistent with the fiduciary obligations under applicable law of the Company's Board of Directors, the Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection therewith information (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any including non-public information regarding any information, but only pursuant to a confidentiality agreement in customary form, including customary standstill provisions) and take such other actions as are consistent with the fiduciary obligations of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approveCompany's Board of Directors, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter and such actions shall not be considered a breach of intent or similar document this Section 5.12 or any Contract (other than confidentiality agreements contemplated by provision of this Section 4.3) contemplating or otherwise relating to any Acquisition TransactionAgreement; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall not, and shall not permit any of its officers, directors, employees or other representatives to, agree to or endorse any Takeover Proposal unless the Company shall have terminated this Agreement pursuant to Section 7.1(e) and paid to Parent all amounts payable to Parent pursuant to Section 5.6(b). The Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal any inquiries or Acquisition Inquiry (including the identity Takeover Proposals and keep Parent informed of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, status and the terms thereof). The Company shall keep Parent fully informed material information with respect to such inquiries or Takeover Proposals. As used in this Agreement, "Takeover Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the status Company or the Company Common Stock and terms of made by a Person other than Parent or any such Acquisition Proposal proposal or Acquisition Inquiry and offer to acquire in any modification manner a substantial equity interest in, or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as a substantial portion of the date of assets of, the Company other than the transactions contemplated by this Agreement with any Person that relate to any Acquisition Proposal or Acquisition InquiryAgreement. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company shall not directly or indirectly doagrees that it will not, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly doeswill cause its Subsidiaries and its and its Subsidiaries’ officers, any of the following: (i) solicitdirectors, agents, advisors and affiliates not to, initiate, knowingly encouragesolicit, induce encourage or knowingly facilitate the makinginquiries or proposals with respect to, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions or negotiations with with, any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approveperson relating to, endorse or recommend any Acquisition Proposal; , or (v) execute waive any provision of or enter into any letter amend the terms of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company mayRights Agreement, (A) in response to respect of an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such PersonProposal; provided that, in the case of each of (A) and (B) if: (1) such event Company receives an unsolicited Acquisition Proposal shall not have arisen directly or indirectly from any breach and the Board of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors determines Company concludes in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that there is a reasonable likelihood that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach Superior Proposal, Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of counsel) that failure to take such actions would more likely than not result in a violation of its fiduciary obligations duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information toforegoing proviso, or entering it shall have entered into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed a confidentiality agreement containing provisions at least as with such third party on terms no less favorable to the Company as those contained in it than the Confidentiality Agreement; Agreement as entered into on September 26, 2008, and (6) concurrently it shall simultaneously provide Parent with furnishing any such nonpublic information to the extent it has not previously provided such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall will immediately cease and cause to be terminated any activities, discussions prior to or as of negotiations conducted before the date of this Agreement with any Person that relate persons other than Parent with respect to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of and will use its reasonable best efforts to enforce any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement relating to an Acquisition Proposal. Company will promptly (within two business days) advise Parent following receipt of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal), and will keep Parent apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis. (b) Nothing contained in connection this Agreement shall prevent Company or its Board of Directors from complying with its consideration of a possible Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Transaction Proposal; provided that such Rules will in no way eliminate or equity investment to return to modify the Acquired Corporations all confidential information heretofore furnished effect that any action pursuant to such Person by or on behalf of any of the Acquired CorporationsRules would otherwise have under this Agreement.

No Solicitation. (a) The Company Harcourt General agrees that neither it nor any executive officer of Harcourt General named on Schedule 4.6 to this Agreement or any director of Harcourt General who is also an executive officer or director of Neiman Marcus (a "Shared Representative") shall not directly solicit any offers or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: proposals regarding (i) solicitany merger, initiatereorganization, knowingly encourageshare exchange, induce consolidation, business combination, recapitalization, liquidation, dissolution or knowingly facilitate the makingsimilar transaction involving Neiman Marcus, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any purchase or sale of all or substantially all of the Acquired Corporations to any Person in connection with assets of Neiman Marcus or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage any issuance or other sale or transfer of any equity interest in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; Neiman Marcus held by Harcourt General (iv) approvecollectively, endorse or recommend any Acquisition a "Transaction Proposal; or "). The obligations set forth in clauses (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (Ai) and (Bii) if: (1of this Section 4.6(a) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of terminate on the provisions date that is two years following the Distribution Date and the obligations set forth in this Section 4.3; clause (2iii) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by 4.6(a) shall terminate on the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this AgreementDistribution Date. (b) If any Acquired Corporation Upon receipt of an unsolicited Transaction Proposal, Harcourt General or any Representative Shared Representative, as the case may be, shall, in Harcourt General's sole discretion, either (i) promptly reject such Transaction Proposal, subject to the fiduciary obligations of any Acquired Corporation receives Shared Representative to Neiman Marcus or its stockholders or to such Shared Representative's obligations as an Acquisition executive officer of Neiman Marcus, or (ii) refer such Transaction Proposal or Acquisition Inquiry at to Walt▇▇ ▇. ▇▇▇▇▇▇ ▇▇ another Independent Director and to the Person designated pursuant to Section 5.5 to receive copies of any time during notices delivered to Neiman Marcus and the Pre-Closing PeriodIndependent Directors of Neiman Marcus. In the event that the Independent Directors determine that such Transaction Proposal should be discussed further with the party making such Transaction Proposal, then the Company Independent Directors shall promptly (and notify Harcourt General in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity writing, signed by a majority of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, Independent Directors of Neiman Marcus. Harcourt General and the terms thereof)Shared Representatives shall be permitted to take such steps as they deem appropriate, in their good faith judgment, in connection with such Transaction Proposal without being deemed to violate this Section 4.6. The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal sole remedy for breach by Harcourt General or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any Shared Representatives of this Section 4.6 shall be the elimination of the Acquired Corporations has any rightsindemnity obligation of Neiman Marcus set forth in Section 2.4(c), and shall enforce or cause to be enforced each such agreement to as provided in the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement last sentence of Section 2.4(c), except as provided in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished proviso to such Person by or on behalf last sentence of any of the Acquired CorporationsSection 2.4(c).

No Solicitation. (a) The Company shall not directly or indirectly doDuring the Interim Period, and shall ensure that no Representative except as permitted by this Section 5.3 or otherwise in connection with any Asset Dispositions, none of the Company or any of the Acquired Corporations directly or indirectly does, Company Subsidiaries nor any of the following: directors and officers of the Company or the Company Subsidiaries shall, and the Company shall direct the Company and the Company Subsidiaries’ other Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage, induce solicit or knowingly encourage or facilitate any inquiries or the makingmaking of any proposal or offer that constitutes, submission or announcement of would reasonably be expected to lead to, any Acquisition Proposal (other than discussions solely to clarify whether such proposal or offer constitutes an Acquisition Inquiry; Proposal or informing such Person of the provisions contained in this Section 5.3(a)); (ii) furnish engage in, continue or otherwise participate in any discussions (other than informing any Person of the provisions contained in this Section 5.3(a)) or negotiations regarding, or provide any non-public information regarding any of the Acquired Corporations or data to any Person or afford access to the business properties, assets, books, or records of the Company or any of its Subsidiaries to any third party, in connection with each case relating to, any Acquisition Proposal or in response any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; Proposal; (iii) engage in discussions amend or negotiations with grant any Person waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of the Company Subsidiaries; provided, however, that if, and only if, the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to amend or grant any waiver or release under any such standstill or similar agreement would be inconsistent with the Company Board’s fiduciary duties under applicable Law, the Company may then amend or grant a waiver or release under such standstill or similar agreement, solely to the extent necessary to permit a Person to make, on a confidential basis to the Company Board, an Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Acquisition Proposal on Acquisition Inquiry; to Parent as contemplated by this Section 5.3; (iv) approveapprove any transaction under, endorse or recommend any Acquisition Proposal; or third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) otherwise knowingly facilitate any effort or attempt by any third party (or its potential sources of financing) to make any proposal or offer that constitutes an Acquisition Proposal; (vi) except as permitted by Section 5.3(e), approve, endorse, recommend, or execute or enter into any letter of intent intent, agreement in principle, term sheet, memorandum of understanding, merger agreement, acquisition agreement or other similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawnother than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”); or (vii) approve, furnish nonpublic information regarding the Acquired Corporations toauthorize, agree or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from publicly announce any breach of intention to do any of the provisions set forth in this Section 4.3; foregoing. Any breach by the directors, officers and attorneys of the Company or any of the Company Subsidiaries, or any other Representative of the Company (2) the board of directors determines in good faith by majority vote, after having considered the advice of at the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3direction), of this Section 5.3(a) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would shall be reasonably likely to result in deemed a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken hereof by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. Except with respect to this Agreement and the transactions contemplated hereby, no Company Entity nor any Affiliate thereof nor any Representative thereof retained by any Company Entity shall, directly or indirectly, initiate, solicit, encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries or the making of any Acquisition Proposal. Notwithstanding anything herein to the contrary, Company and its Board of Directors shall be permitted (i) to the extent applicable, to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, (ii) 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 (a) The Company stockholders shall not directly or indirectly dohave approved adoption of this Agreement at the Stockholders' Meeting, (b) Company's Board of Directors concludes in good faith and shall ensure consistent with its fiduciary duties to Company's stockholders under applicable Law that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any such Acquisition Proposal could reasonably be expected to result in a Superior Proposal, (c) prior to providing any information or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations data to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with by any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Company's Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company Directors receives from such Person an executed confidentiality agreement containing provisions confidentiality terms at least as favorable to the Company stringent as those contained in the Confidentiality Agreement; , and (6d) concurrently prior to providing any information or data to any Person or entering into discussions or negotiations with furnishing any Person, Company's Board of Directors notifies Parent promptly of such inquiries, proposals or offers received by, any such nonpublic information requested from, or any such discussions or negotiations sought to be initiated or continued with, any of its Representatives indicating, in connection with such Personnotice, the Company furnishes name of such nonpublic information to Parent. Without limiting Person and the generality of the foregoing, the Company acknowledges material terms and agrees that, in the event any Representative conditions of any of the Acquired Corporations (whether inquiries, proposals or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the offers. Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall agrees that it will promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to of the status and terms of any such Acquisition Proposal proposals or Acquisition Inquiry offers and the status and terms of any modification such discussions or proposed modification thereto. (c) The negotiations. Company shall agrees that it will, and will cause its officers, directors and Representatives to, immediately cease and cause to be terminated any activities, discussions prior to or negotiations existing as of the date of this Agreement with any Person that relate parties conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry. (d) The Proposal. Company shall not release or permit the release of any Person fromagrees that it will use reasonable best efforts to promptly inform its directors, or waive or permit the waiver of any provision of or right underofficers, any confidentialitykey employees, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any agents and Representatives of the Acquired Corporations is a party obligations undertaken in this Section 8.8. Nothing in this Section 8.8 shall (x) permit Company to terminate this Agreement (except as specifically provided in Article 10) or (y) affect any other obligation of Parent or Company under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Agreement.

No Solicitation. (a) The Company From the date hereof until the Effective Time, Parent shall not not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any of its directors, officers, or employees, or any investment banker, financial advisor, attorney, accountant, or other representative retained by it or any of its subsidiaries (the "Representatives") to, directly or indirectly dothrough another Person, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicitsolicit or initiate (including by way of furnishing information), initiate, knowingly or take any other action designed and intended to facilitate or encourage, induce any inquiries or knowingly facilitate the making, submission or announcement making of any Acquisition proposal that constitutes any Takeover Proposal or Acquisition Inquiry; (as defined below), (ii) furnish participate or engage in any non-public information discussions or negotiations regarding any Takeover Proposal, or (iii) disclose any nonpublic information relating to Parent or any of the Acquired Corporations its subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Takeover Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (Aii) and (Biii) only, if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from , at any breach time prior to obtaining the Parent Stockholders' Approval, the Board of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors Parent determines in good faith by majority votefaith, (i) after having considered consulting with and receiving the advice of the Company’s outside legal counsel counsel, that it is necessary to do so in order to comply with its fiduciary duties to Parent's stockholders under applicable law and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3ii) the board of directors determines in good faith by majority vote, after having considered based on the advice of the Company’s outside legal counselParent's financial advisors, that failure a Takeover Proposal is a Superior Proposal (as defined below), then Parent may, in response to take a bona fide written Takeover Proposal that was not solicited by it, and subject to compliance with Section 6.13(c), (x) furnish information with respect to Parent and its subsidiaries to any Person submitting such action would be reasonably likely Takeover Proposal, provided such information is furnished pursuant to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed existing confidentiality agreement containing provisions at least as or a confidentiality agreement with terms no less favorable to the Company as Parent than those contained in the Confidentiality Agreement; Agreement (as hereinafter defined) (which agreement Parent is hereby permitted to enter into) and (6y) concurrently with furnishing any participate in discussions or negotiations regarding such nonpublic information to such Person, the Company furnishes such nonpublic information to ParentTakeover Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for For purposes of this Agreement. (b) If , "Takeover Proposal" means any Acquired Corporation inquiry, proposal, or offer from any Person relating to any direct or indirect acquisition or purchase of 15% or more of the assets of Parent and its subsidiaries or 15% or more of any class of equity securities of Parent or any Representative of its subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 15% or more of any Acquired Corporation receives an Acquisition Proposal class of equity securities of Parent or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person fromits subsidiaries, or waive or permit the waiver of any provision of or right undermerger, any confidentialityconsolidation, non-solicitationbusiness combination, no hirerecapitalization, “standstill” liquidation, dissolution, or similar agreement in connection with, relating to, transaction involving Parent or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of its subsidiaries, in all cases other than the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested transactions contemplated by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Agreement.

No Solicitation. (a) The Neither the Company nor any of its subsidiaries shall, nor shall not it authorize any of its officers, directors, employees, agents, investment bankers, attorneys, financial advisors or other representatives retained by it or any of its subsidiaries (collectively, "Company Representatives") to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicitsolicit or initiate the submission of, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (as defined in Section 4.02(c)), (ii) participate in any discussions or negotiations regarding, or furnish any non-public information regarding any of the Acquired Corporations to any Person in connection person any information with respect to, or in response take any other action intended to facilitate any inquiries or the making of any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with enter into any Person agreement with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approveto, endorse agree to, approve or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained . Nothing in this Section 4.3(a)4.02(a) shall prevent the Board of Directors of the Company (or any committee thereof) from considering, prior negotiating, discussing, approving and recommending to the adoption and approval stockholders of the Company a bona fide Acquisition Proposal not solicited in violation of this Agreement by Agreement, provided the Required Stockholder Vote, Board of Directors of the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority votefaith, after having considered the based upon advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure it is required to take such action would be reasonably likely do so in order to result in a breach of discharge properly its fiduciary obligations duties. Nothing contained in this Section 4.02(a) shall prevent the Board of Directors of the Company from taking and disclosing to the Company’s 's stockholders a position with regard to a tender offer or exchange offer contemplated by Rules 14d-9 and 14e-2(a) promulgated under applicable Legal Requirements; (4) at least two business days prior the Exchange Act and making such disclosure to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice stockholders of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in may be required under applicable law; provided, that the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, Board of Directors of the Company furnishes such nonpublic information to Parent. Without limiting shall not recommend that the generality stockholders of the foregoing, Company tender their shares of Company Common Stock in connection with such tender or exchange offer unless the Board of Directors of the Company acknowledges and agrees thatdetermines in good faith, based upon advice of outside legal counsel, that making such recommendation is required in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting order to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementdischarge properly its fiduciary duties. (b) If The Company shall immediately notify Parent after receipt of any Acquired Corporation Acquisition Proposal, or any Representative modification of or amendment to any Acquired Corporation receives Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or Acquisition Inquiry at any time during for access to the Pre-Closing Periodproperties, then books or records of the Company shall promptly (and in no event later than 48 hours after receipt or any subsidiary by any person or entity that informs the Board of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity Directors of the Person making Company or submitting such subsidiary that it is considering making, or has made, an Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoProposal. (c) The Company As used in this Agreement, "Acquisition Proposal" shall immediately cease and cause mean any proposal or offer from any person (other than Parent, Merger Sub or any other direct or indirect wholly owned subsidiary of Parent) relating to be terminated (i) any discussions prior to direct or as of the date of this Agreement with any Person that relate to any Acquisition Proposal indirect acquisition or Acquisition Inquiry. (d) The Company shall not release or permit the release purchase of any Person fromequity interest in, or waive a substantial amount of assets of, the Company or permit the waiver of its subsidiaries, (ii) any provision of tender offer or right underexchange offer (including a self-tender offer), (iii) any confidentialitymerger, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.consolidation,

No Solicitation. (ai) The Company Seller and its subsidiaries and their respective officers, directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). The Seller shall not, nor shall it permit any of its Subsidiaries to, and it shall use its best efforts to cause its officers, directors, employees, agents or affiliates not to, directly or indirectly, (A) solicit, initiate or knowingly encourage (including by way of furnishing information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined in this Section 5(h)), or (B) participate in any discussions or negotiations regarding any Acquisition Proposal; provided, however, that if the board of directors of the Seller determines in good faith, after consultation with, and in part based on the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the Seller’s stockholders under applicable law, the Seller may, in response to an unsolicited Acquisition Proposal, and subject to compliance with Section 5(h)(iii), (X) furnish information with respect to the Seller to any Person making such unsolicited Acquisition Proposal pursuant to an executed confidentiality agreement with such Person, and (Y) participate in discussions or negotiations regarding such Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any bona fide proposal or offer from any Person relating to any merger, consolidation, business combination, sale or a significant amount of assets outside of the Ordinary Course of Business, sale of shares of capital stock outside of the Ordinary Course of Business, tender or exchange offer or similar transaction involving the Division, the Division Subsidiaries or the Acquired Assets; provided however, for the avoidance of doubt, that “Acquisition Proposal” shall not directly include any joint venture agreement entered into by any of Seller, its Napster Division, or indirectly dothose of its Subsidiaries that are included in its Napster Division or any merger, and shall ensure consolidation, business combination, sale of a significant amount of assets, sale of shares of capital stock, tender or exchange offer of similar transaction involving Seller or any of those Subsidiaries that no Representative of are included in Seller’s Napster Division or any Excluded Asset (i) which does not involve any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; Assets and (ii) furnish the consummation of which will in no way prevent or impair in any non-public information regarding any material respect the Transaction or impair the ability of Buyer to operate the Division in a manner consistent with its operation by Seller prior to the Closing Date. (ii) Except as set forth in this Section 5(h), neither the board of directors of the Acquired Corporations Seller nor any committee thereof shall (A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Buyer, the approval or recommendation by such board of directors or such committee of the Transaction or this Agreement, (B) approve or recommend, or propose to approve or recommend, any Person Acquisition Proposal, or (C) cause the Seller to enter into any letter of intent, agreement in connection with principle, acquisition agreement or in response to other similar agreement (each, an “Acquisition Proposal or Acquisition Inquiry; (iiiAgreement”) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to . Notwithstanding the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Personforegoing, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) event that the board of directors of the Seller determines in good faith by majority votefaith, after having considered consultation with and based in part on the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the CompanySeller’s outside legal counsel stockholders under applicable law, the board of directors of the Seller may (subject to the following sentences) (X) withdraw or modify its approval or recommendation of the Transaction and this Agreement (or decide not to recommend it before the Definitive Proxy Materials are sent to the Seller’s stockholders) only at a time that is after the fifth business day following Buyer’s receipt of written notice advising Buyer that the board of directors of the Seller has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal or (Y) terminate this Agreement by exercising its termination right under Section 9(a)(vii). In addition, if the Seller proposes to terminate this Agreement pursuant to Section 9(a)(vii), it shall pay to Buyer the Termination Fee (as defined in Section 10(k)) at the time prescribed in Section 10(k). For purpose of this Agreement, a “Superior Proposal” shall mean an Acquisition Proposal made by a third party after the Signing Date which, in the good faith judgment of the board of directors of the Seller, taking into account, to the extent deemed appropriate by the board of directors, the various legal, financial and regulatory aspects of the proposal and the Financial Advisor that Person making such Acquisition Proposal constitutes a Superior Offer or proposal, (x) if accepted, is reasonably likely to lead to a Superior Offer; be consummated, and (3y) the board of directors determines in good faith by majority voteif consummated, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be is reasonably likely to result in a breach of its fiduciary obligations to more favorable transaction than the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information toTransaction contemplated hereunder considering, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiryamong other things, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested deemed appropriate in good faith by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration the Board of a possible Acquisition Transaction or equity investment to return to Directors, the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any long-term prospects and interests of the Acquired CorporationsSeller and its stockholders and other relevant constituencies.

No Solicitation. (a) The From the date hereof until the Acceptance Date or the earlier termination of this Agreement in accordance with its terms, the Company shall agrees that neither it nor any of its Subsidiaries, nor any of their respective officers, directors or employees, will, and that it will use its reasonable best efforts to cause its and their respective other Representatives not to (and will not authorize or give permission to its and their respective Representatives to), directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, knowingly encourage, induce seek or knowingly facilitate encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; Proposal, (ii) furnish any non-public nonpublic information regarding the Company or any of the Acquired Corporations its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 5.8(e), approve, endorse or recommend any Acquisition Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 5.8(e), enter into any letter of intent, arrangement, agreement or understanding relating to any Acquisition Proposal; provided, however, that this Section 5.8(a) will not prohibit (A) the Company Board or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the Acceptance Date, from furnishing nonpublic information regarding the Company or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide Acquisition Proposal that the Company Board or any committee thereof concludes in good faith, after consultation with outside legal counsel and a financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal if (1) the Company Board thereof concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Acquisition Proposal would be reasonably likely to result in a breach of its fiduciary duties under applicable law, (2) such Acquisition Proposal did not result from a breach of this Section 5.8, (3) prior thereto the Company has given Parent the notice required by Section 5.8(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such Person containing customary terms and conditions that in the aggregate are not materially less restrictive than those contained in the Confidentiality Agreement or (B) the Company from complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any Acquisition Proposal, including any so called “stop, look and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that the failure of the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable law; provided that the Company Board may make a Company Change of Recommendation only in accordance with Section 5.8(e). (b) The Company will promptly, and in no event later than 24 hours after its receipt of any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal, advise Parent orally and in writing of such Acquisition Proposal or request (including providing the identity of the Person making or submitting such Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Acquisition Proposal and any related draft agreements and (ii) if oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing Date). The Company will keep Parent informed on a prompt basis with respect to any change to the material terms of any such Acquisition Proposal (and in no event later than 24 hours following any such change), including providing Parent with a copy of any draft agreements and modifications thereof. (c) Upon the execution of this Agreement, the Company will, and will cause its Subsidiaries and its and their respective officers, directors and employees, and will use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between the Company or any of its Subsidiaries or any of their respective Representatives and any Person that relate to any Acquisition Proposal and use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons with respect thereto within 12 months prior to the date hereof (to the extent that the Company has the right to cause such Persons to return or destroy such confidential information under a confidentiality agreement (or other similar agreement) with such Persons). (d) Except as otherwise provided in Section 5.8(e), the Company Board (or any committee thereof) may not (i) withhold, withdraw or modify, or publicly propose to withhold, withdraw or modify, the Company Board Recommendation in a manner adverse to Parent or make any statement, filing or release, in connection with obtaining the Company Stockholder Approval or otherwise, inconsistent with the Company Board Recommendation, (ii) approve, endorse or recommend any Acquisition Proposal; Proposal (any of the foregoing set forth in clauses (i) and (ii), a “Company Change of Recommendation”), or (viii) execute or enter into a written agreement providing for an Acquisition Proposal. (e) The Company Board may at any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), time prior to the adoption and approval earlier of the Acceptance Date or receipt of the Company Stockholder Approval (i) effect a Company Change of Recommendation in respect of an Acquisition Proposal or (ii) if it elects to do so in connection with or following a Company Change of Recommendation, terminate this Agreement by the Required Stockholder Votepursuant to Section 8.1(f) in order to enter into a definitive written agreement providing for an Acquisition Proposal, the Company may, if and only if: (A) in response to an Acquisition Inquiry that Proposal is made to the Company by a third party, such offer is not withdrawn and the Company has been made by such Person (and not withdrawn)breached this Section 5.8, furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, Company Board or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors committee thereof determines in good faith by majority vote, after having considered the advice of the Company’s consultation with outside legal counsel and the Financial Advisor a financial advisor that such Acquisition Proposal offer constitutes a Superior Offer Proposal, (C) following consultation with outside legal counsel, the Company Board or is any committee thereof determines that failure to take such action would be reasonably likely to lead result in a breach of its fiduciary duties under applicable law, (D) the Company provides Parent three Business Days’ prior written notice of its intention to take such action (such three-Business Day period, the “Notice Period”), which notice will include the information with respect to such Superior Proposal that is specified in Section 5.8(b) (it being understood that any material revision or amendment to the terms of such Superior Proposal will require a new notice and, in such case, all references to three Business Days in this Section 5.8(e) will be deemed to be two Business Days), (E) at the end of the Notice Period described in clause (D), the Company Board again makes the determination in good faith after consultation with outside legal counsel and a financial advisor (after negotiating in good faith with Parent and its Representatives if requested by Parent during the Notice Period regarding any adjustments or modifications to the terms of this Agreement proposed by Parent and taking into account any such adjustments or modifications) that the Acquisition Proposal continues to be a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable law, and (F) the Company has paid the Company Termination Fee in accordance with Section 8.3. (f) During the period from the date of this Agreement through the Effective Time, neither the Company nor any of its Subsidiaries may terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a Superior Offer; (3) proposed business combination involving the board of directors Company or any standstill agreement to which it is a party unless the Company Board or any committee thereof determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; (4) at least two business days prior to furnishing any law. During such nonpublic information to, or entering into discussions or negotiations with, such Personperiod, the Company gives Parent written notice or its Subsidiaries, as the case may be, will enforce, to the fullest extent permitted under applicable law, the provisions of the identity any such agreement, including by obtaining injunctions to prevent any breaches of such Person agreements and of to enforce specifically the Company’s intention terms and provisions thereof in each case except to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the extent that the Company receives from Board or any committee thereof determines in good faith, after consultation with outside legal counsel, that taking such Person an executed confidentiality agreement containing provisions at least as favorable action would be reasonably likely to the Company as those contained result in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementits fiduciary duties under applicable law. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Each of Parent and the Company agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall not it or any of its Subsidiaries authorize or permit any of its Representatives to, directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, initiate or knowingly encourage, induce or knowingly facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; , (ii) furnish any non-public information regarding any of the Acquired Corporations such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; , (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on or Acquisition Inquiry; , (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition TransactionTransaction or (v) publicly propose to do any of the foregoing; provided, however, that, notwithstanding anything contained in this Section 4.3(a)‎5.4 and subject to compliance with this Section ‎5.4, prior to the adoption and approval of this Agreement by a Party’s stockholders (i.e., the Required Company Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each the Company and its Subsidiaries, or the Required Parent Stockholder Vote in the case of (A) Parent), such Party may furnish non-public information regarding such Party and (B) if: (1) such its Subsidiaries to, and enter into discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the by such Person which such Party’s board of directors determines in good faith by majority votefaith, after having considered the advice of the Companyconsultation with such Party’s financial advisors and outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer counsel, constitutes, or is reasonably likely to lead to result in, a Superior Offer; Offer (3and is not withdrawn) if: (A) such Acquisition Proposal was not obtained or made as a direct or indirect result of a breach of this Agreement, (B) the board of directors determines of such Party concludes in good faith by majority vote, after having considered based on the advice of the Company’s outside legal counsel, that the failure to take such action would reasonably be reasonably likely expected to result in a breach be inconsistent with the board of its directors’ fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; Law, (4C) at least two business days (2) Business Days prior to initially furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, such Party gives the Company gives Parent other Party written notice of the identity of such Person and of the Companysuch Party’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and , (5D) the Company such Party receives from such Person an executed confidentiality agreement containing provisions Acceptable Confidentiality Agreement and (E) at least as favorable two (2) Business Days prior to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company such Party furnishes such nonpublic information to Parentthe other Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, the Company each Party acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) Party takes any action that, if taken by the Companysuch Party, would constitute a breach of this Section 4.3 ‎5.4 by the Companysuch Party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 ‎5.4 by the Company such Party for purposes of this Agreement. (b) If any Acquired Corporation Party or any Representative of any Acquired Corporation such Party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company such Party shall promptly (and in no event later than 48 hours one (1) Business Day after receipt such Party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and the other Party in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company Such Party shall keep Parent fully the other Party reasonably informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or material proposed modification thereto. (c) The Company Each Party shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement existing discussions, negotiations and communications with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release Inquiry as of the date of this Agreement and request the destruction or permit the release return of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential nonpublic information heretofore furnished provided to such Person by or on behalf of any of the Acquired CorporationsPerson.

No Solicitation. (a) The Company From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Article VII, each Party shall not not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officers, directors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Representative retained by it or any of its Subsidiaries to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiry or the makingmaking of any proposal which constitutes, submission or announcement may reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or Acquisition Inquiry; (iiiii) furnish enter into, continue or otherwise participate in any non-public information discussions or negotiations regarding any Acquisition Proposal; provided, however, that if any Party, prior to obtaining its Shareholder Approval, following the receipt of a Superior Proposal or an Acquisition Proposal that such Party’s board of directors, determines in good faith is reasonably expected to lead to a Superior Proposal and that in either case was unsolicited and made after the Acquired Corporations date of this Agreement in circumstances not otherwise involving a breach of this Agreement, and such Party’s board of directors determines in good faith, after consultation with outside legal counsel, that a failure to any Person in connection take action with or respect to such Acquisition Proposal would be inconsistent with its fiduciary duties to its shareholders under applicable Law, such Party may, in response to an such Acquisition Proposal, and subject to compliance with Section 5.9(c), furnish information with respect to such Party to the party making such Acquisition Proposal pursuant to a confidentiality agreement that contains provisions not less favorable to such Party (an “Acceptable Confidentiality Agreement”), than those contained in the Confidentiality Agreement. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officers, directors or Acquisition Inquiry; (iiiemployees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Representative of each of the Parties or any of their respective Subsidiaries shall be deemed to be a breach of this Section 5.9(a) engage in discussions by such Party. Each Party shall, and shall cause its Subsidiaries and each of their directors, officers, employees, and Representatives to, immediately cease any and all existing activities, discussions, or negotiations with any Person Persons conducted heretofore with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend and will use and cause to be used all commercially reasonable efforts to enforce any Acquisition Proposal; or (v) execute or enter into any letter of intent confidentiality or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise related agreement relating to any Acquisition Transaction; providedProposal, however, that, notwithstanding anything contained in this Section 4.3(a)including promptly requiring any other party to such an agreement to promptly destroy or return all related information provided by or on behalf of the applicable Party or its Affiliates. (b) Notwithstanding the foregoing, prior to the adoption receipt of such Party’s Shareholder Approval, such Party’s board of directors may (subject to compliance with this Section 5.9(b) and approval to compliance with Sections 5.9(a)), effect an Adverse Recommendation Change, if (and only if): (i) (A) a written Acquisition Proposal that was not solicited in violation of this Agreement is made to such Party by the Required Stockholder Vote, the Company may, (A) in response to an a third party and such Acquisition Inquiry that has been made by such Person (and Proposal is not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and or (B) in response an Intervening Event occurs with respect to an Acquisition Proposal that has been made by such Person Party; (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, ii) in the case of each of clause (A) and (B) if: (1) i)(A), such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the Party’s board of directors determines concludes in good faith by majority votefaith, after having considered the advice of the Company’s consultation with its outside financial advisors and outside legal counsel and the Financial Advisor counsel, that such Acquisition Proposal constitutes a Superior Offer Proposal; and (iii) such Party’s board of directors concludes in good faith, after consultation with its outside legal counsel, that the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties to its shareholders under applicable Laws. (c) In addition to the obligations of the Parties set forth in Sections 5.9(a) and 5.9(b), each Party shall promptly, and in any event no later than twenty-four (24) hours after it receives any Acquisition Proposal, advise the other Parties orally and in writing of any request for confidential information in connection with an Acquisition Proposal or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal, and the identity of the Person making such request or Acquisition Proposal, and shall keep the other Parties promptly advised of all changes to the material terms of any Acquisition Proposal. Each Party, shall, prior to or concurrently with the time it is reasonably likely provided to lead any third Persons, provide to a Superior Offer; the other Parties any non-public information concerning such Party and its Subsidiaries that such Party provides (3including through its Representatives) to any third Person in connection with any Acquisition Proposal that was not previously provided to the other Parties. (d) Nothing contained in this Section 5.9 or Section 5.10, but in all cases subject to Sections 5.4, 5.5, and 5.8, as applicable, shall prohibit any Party’s board of directors from making any disclosure to its shareholders if such Party’s board of directors determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with its outside legal counsel, that the failure to take make such action disclosure would be reasonably likely to result in a breach be inconsistent with applicable Law; provided, however, that no Party’s board of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; directors or any committee thereof shall, except as expressly permitted by Section 5.9, effect an Adverse Recommendation Change. (4e) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for For purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.:

No Solicitation. (a) The Company shall not not, nor shall it permit any of its Subsidiaries to, or authorize or permit any director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly initiate or encourage, induce or take any other action knowingly facilitate to facilitate, any Takeover Proposal or any inquiries or the making, submission or announcement making of any Acquisition Proposal proposal that constitutes or Acquisition Inquiry; could reasonably be expected to lead to a Takeover Proposal, or (ii) furnish enter into, continue or otherwise participate in any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with regarding, or furnish to any Person person any information with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approveto, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to cooperate in any Acquisition Transactionway with, any Takeover Proposal; provided, however, that, notwithstanding anything contained in this Section 4.3(a), that at any time prior to obtaining the adoption and approval Stockholder Approval, the Board of this Agreement by the Required Stockholder Vote, Directors of the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition a bona fide written Takeover Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors Directors reasonably determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal resolution duly adopted constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority voteProposal, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to and which Takeover Proposal was unsolicited and did not otherwise result in from a breach of its fiduciary obligations this Agreement (including this Section 5.02), and subject to compliance with Sections 5.02(b) and 5.02(c), (A) furnish information with respect to the Company’s stockholders under applicable Legal Requirements; Company and its Subsidiaries to the person making such Takeover Proposal (4and its representatives) at least two business days prior pursuant to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed a confidentiality agreement containing provisions having terms that are at least as favorable to the Company as those the terms contained in the Confidentiality Agreement; , provided that all such information is provided on a prior basis to Parent, and (6B) concurrently participate in discussions or negotiations with furnishing any the person making such nonpublic information Takeover Proposal (and its representatives) regarding such Takeover Proposal, but in each case only to such Person, the extent the Board of Directors of the Company furnishes determines in good faith, after consultation with outside counsel, by resolution duly adopted, that the failure to take such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of the fiduciary duties of the Board of Directors of the Company under Applicable Law. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.3 5.02(a) by any director, officer or employee of the CompanyCompany or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the taking Company or any of such action by such Representative its Subsidiaries shall be deemed to constitute be a breach of this Section 4.3 5.02(a) by the Company for purposes of this AgreementCompany. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company shall not Each of the Sellers agrees that it will not, directly or indirectly dothrough any officer, and shall ensure that no Representative of any of the Acquired Corporations directly subsidiary, Affiliate, director, employee, stockholder, representative, agent or indirectly doesother Person, any of the following: (i) solicitseek, initiate, knowingly encouragesolicit or encourage any Person to make an inquiry or proposal with respect to the purchase or other acquisition (including by way of a merger, induce consolidation, stock purchase, asset purchase or knowingly facilitate share exchange) of a significant portion of the makingFastener Business Assets or any substantially similar transaction, submission or announcement of any in each case other than the transactions contemplated by this Agreement (a "Fastener Business Acquisition Proposal or Acquisition Inquiry; Proposal"), (ii) furnish engage in negotiations or discussions concerning a Fastener Business Acquisition Proposal with any Person or group, (iii) disclose any non-public information regarding relating to the Sellers or give access to the properties, employees, books or records of the Sellers or any of the Acquired Corporations its subsidiaries to any Person or group in connection with or in response to an any Fastener Business Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Fastener Business Acquisition InquiryProposal; provided that nothing herein shall prevent the Board of Directors of the Parent from (iiia) engage furnishing information to any Person that has made a Fastener Business Acquisition Proposal not solicited in violation of this Section 5.11 or (b) subject to the other provisions of this Section 5.11, entering into or participating in discussions or negotiations with any Person with respect to any concerning a Fastener Business Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter not solicited in violation of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided5.11 so long as, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company mayeach case, (Ax) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors determines Parent shall have concluded in good faith by majority votefaith, after having considered receiving and considering the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s its outside legal counsel, that failure failing to take participate in such action discussions or negotiations or furnishing such information would cause the Board of Directors of the Parent to be reasonably likely to result in a breach of its fiduciary obligations responsibilities to the Company’s its stockholders under applicable Legal Requirements; Law, and (4y) at least two business days prior to participating in such discussions or negotiations or furnishing any such nonpublic information to, or entering into discussions or negotiations withinformation, such Person, Seller and the Company gives Parent written notice of the identity of party making such Person and of the Company’s intention offer agrees to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed a confidentiality agreement containing provisions at least as that is no more favorable to the Company as those contained in party receiving information than the Confidentiality Agreement; Agreement and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to ParentBuyer is given concurrent or advance written notice thereof. Without limiting the generality The Board of Directors of the foregoingParent may (A) fail to make, withdraw, or modify in a manner adverse to the Company acknowledges Parent its recommendation to its stockholders referred to in Section 5.12 hereof, (B) take and agrees thatdisclose to its stockholders a position contemplated by Rule 14e-2 under the Exchange Act or otherwise complying with its disclosure obligations and/or (C) take any non-appealable, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting final action ordered to act on behalf of any of the Acquired Corporations) takes any action that, if be taken by the CompanyParent by any court of competent jurisdiction, would constitute a breach but in each case only if the Board of this Section 4.3 by Directors of the CompanyParent shall have concluded in good faith, the taking of after consultation with its outside legal counsel, that such action by such Representative shall be deemed to constitute a breach is required in the exercise of this Section 4.3 by the Company for purposes of this Agreementits fiduciary duties under applicable Law. (b) If any Acquired Corporation or any Representative The Parent shall notify the Buyer in writing no later than the end of the next business day after receipt thereof of the receipt of any Acquired Corporation receives an Fastener Business Acquisition Proposal or Acquisition Inquiry at any time during (including providing a copy thereof if in writing), the Pre-Closing Period, then the Company shall promptly (terms and in no event later than 48 hours after receipt conditions of such Fastener Business Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)it. The Company Parent also shall keep Parent fully informed with respect to promptly notify the status and terms Buyer no later than the end of the next business day of any change to or modification of such Fastener Business Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoProposal. (c) The Company Subject to the provisions of Section 5.11(a), the Sellers shall, and shall cause each of their respective subsidiaries and their respective advisors, employees and other agents to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to or as of the date of this Agreement hereof with any Person that relate respect to any Fastener Business Acquisition Proposal or Acquisition InquiryProposal. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company Ashland shall not not, nor shall it authorize or permit any Ashland Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, auditor or other advisor, agent or representative (collectively, “Representatives”) of, Ashland or any Ashland Subsidiary to, and on becoming aware of it will use its reasonable best efforts to stop such Ashland Subsidiary or Representative from continuing to, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage the making, submission or announcement of any Acquisition Competing Ashland Proposal or Acquisition Inquiry; (as defined in Section 8.02(e)), (ii) furnish enter into any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Competing Ashland Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (viii) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating into, continue or otherwise relating participate in any discussions or negotiations regarding, or furnish to any Acquisition Transactionperson any information with respect to, or cooperate with or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Ashland Proposal; provided, however, that, notwithstanding anything contained in this Section 4.3(aprior to receipt of the Ashland Shareholder Approval (the “Cutoff Date”), prior to the adoption Ashland and approval of this Agreement by the Required Stockholder Vote, the Company its Representatives may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition a bona fide written Competing Ashland Proposal that has been made by such Person (and not withdrawn)the Ashland Board determines, furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote(after consultation with its financial advisor, after having considered the advice of the Company’s outside legal inside counsel and the Financial Advisor that such Acquisition Proposal outside counsel), constitutes a Superior Offer or is reasonably likely to lead result in a Superior Proposal (as defined in Section 8.02(e)) that was not solicited by Ashland and that did not otherwise result from a breach or a deemed breach of this Section 8.02(a), and subject to compliance with Section 8.02(c), (x) furnish to the person making such Competing Ashland Proposal and its Representatives information with respect to Ashland, pursuant to a Superior Offer; customary confidentiality agreement that does not contain terms that prevent Ashland from complying with its obligations under this Section 8.02, and information with respect to MAP in accordance with the MAP Governing Documents and (3y) participate in discussions or negotiations with such person and its Representatives regarding any Competing Ashland Proposal. (b) Neither the board Ashland Board nor any committee thereof shall (i) withdraw or modify in a manner adverse to the Marathon Parties, or propose publicly to withdraw or modify in a manner adverse to the Marathon Parties, the adoption, approval or recommendation by the Ashland Board or any such committee of directors the Transaction Agreements or the Transactions or (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Competing Ashland Proposal. Notwithstanding the foregoing, if, prior to the Cutoff Date, the Ashland Board determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with inside and outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such PersonLaw, the Company gives Parent written notice Ashland Board may withdraw its adoption, approval or recommendation of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, Transaction Agreements and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoTransactions. (c) The Company Ashland promptly shall immediately cease and cause to be terminated advise Marathon in writing of any discussions prior Competing Ashland Proposal or any inquiry with respect to or as that would reasonably be expected to lead to any Competing Ashland Proposal and the identity of the date of this Agreement with person making any Person that relate to any Acquisition such Competing Ashland Proposal or Acquisition Inquiryinquiry and, in the case of a Competing Ashland Proposal referred to in clause (i) or (ii) of the definition of “Competing Ashland Proposal”, the material terms and conditions of such Competing Ashland Proposal or inquiry, if any, that would reasonably be expected to prevent or materially delay the Transactions or, in the case of a Competing Ashland Proposal referred to in clause (iii) of the definition of “Competing Ashland Proposal”, all material terms and conditions of such Competing Ashland Proposal or inquiry, if any. Ashland shall keep Marathon reasonably informed on a timely basis of the status and, in the case of a Competing Ashland Proposal referred to in clause (i) or (ii) of the definition of “Competing Ashland Proposal”, the details of such Competing Ashland Proposal or inquiry, if any, that would reasonably be expected to prevent or materially delay the Transactions or, in the case of a Competing Ashland Proposal referred to clause (iii) of the definition of “Competing Ashland Proposal”, all the details of any such Competing Ashland Proposal or inquiry, if any. After the Cutoff Date, Ashland shall not be required to comply with this Section 8.02(c) in any instance to the extent that the Ashland Board determines in good faith, after consultation with inside and outside counsel, that such compliance would in such instance be reasonably likely to result in a breach of its fiduciary obligations under applicable Law. (d) The Company Nothing contained in this Agreement shall not release or permit prohibit Ashland from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the release Exchange Act (other than a position recommending acceptance under Rule 14e-2(a)(1) of any Person froma tender offer constituting a Competing Ashland Proposal) if, or waive or permit in the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any good faith judgment of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rightsAshland Board, after consultation with inside and shall enforce or cause outside counsel, failure so to disclose would be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection inconsistent with its consideration obligations under applicable Law. (e) For purposes of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.this Agreement:

No Solicitation. (a) The Company shall not directly or indirectly doEach of SunEdison and Stockholder hereby agrees that it and its Subsidiaries and its and their officers, directors and employees will, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations it will instruct and use its reasonable best efforts to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption cause its and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations its Subsidiaries’ Representatives to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any existing activities, discussions prior to or as of the date of this Agreement negotiations with any Person that relate parties conducted heretofore with respect to any Acquisition Proposal or SunEdison Standalone Acquisition InquiryProposal (including access to any electronic datarooms). (b) Each of SunEdison and Stockholder hereby agrees that neither it nor any of its Subsidiaries nor any of the officers, directors and employees of it or its Subsidiaries shall, and that it shall instruct and use its commercially reasonable efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) initiate, solicit or knowingly encourage any inquiries or the making of any indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal or SunEdison Standalone Acquisition Proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person relating to, any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or SunEdison Standalone Acquisition Proposal or (iii) knowingly facilitate any effort or attempt to make any inquiry, indication of interest, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or SunEdison Standalone Acquisition Proposal. (c) Notwithstanding anything in the foregoing to the contrary, prior to, but not after, the entry by the Bankruptcy Court of the Approval Order, each of SunEdison, Stockholder and their respective Representatives may (i) provide information in response to a request therefor by a Person who has made a bona fide written SunEdison Standalone Acquisition Proposal that did not result from a breach of this Section 3.2 if SunEdison has received or receives from the Person so requesting such information an executed confidentiality agreement (provided that SunEdison shall comply with the provisions of the Confidentiality Agreement between SunEdison, the Company and Terra LLC, dated as of August 22, 2016, as amended, with respect to the disclosure of any Evaluation Material, as defined in such Confidentiality Agreement) and (ii) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written SunEdison Standalone Acquisition Proposal; if and only to the extent that, (x) prior to taking any action described in clause (i) or (ii) above, the board of directors of SunEdison or any duly authorized committee thereof determines in good faith after consultation with its outside legal counsel that failure to take such action would reasonably be expected to result in a breach of the directors’ fiduciary duties under applicable Law, and (y) in each such case referred to in clause (i) or (ii) above, the board of directors of SunEdison or any duly authorized committee thereof has determined in good faith based on the information then available and after consultation with its outside legal counsel and financial advisor that such SunEdison Standalone Acquisition Proposal either constitutes a SunEdison Standalone Superior Proposal or is reasonably likely to result in a SunEdison Standalone Superior Proposal, as applicable. (d) The At least three (3) business days prior to the delivery of a written notice to Parent and the Company pursuant to Section 6.1(e) (each, a “Termination Notice”), SunEdison shall not release or permit provide written notice to Parent and the release Company of its intent to deliver a Termination Notice specifying the reasons therefor, including the terms and conditions of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an SunEdison Standalone Acquisition Proposal or Acquisition Transaction to which any that is the basis of the Acquired Corporations is intended Termination Notice (it being understood and agreed that any amendment to the financial terms or any other material term of such SunEdison Standalone Acquisition Proposal shall require a party new written notice to Parent at least three (3) business days prior to the delivery of a Termination Notice). In determining whether a SunEdison Standalone Acquisition Proposal constitutes a SunEdison Standalone Superior Proposal, the board of directors of SunEdison or under which a duly authorized committee thereof shall take into account any changes to the terms of the Acquired Corporations has any rightsMerger Agreement proposed by Parent and the Company that are written, binding and irrevocable, and if requested by Parent or the Company, SunEdison shall enforce or cause to be enforced each such agreement engage in good faith negotiations with Parent and the Company regarding any changes to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any terms of the Acquired CorporationsMerger Agreement proposed by Parent or the Company.

No Solicitation. (a) The Company shall not directly or indirectly doand its subsidiaries shall, and shall ensure direct and use reasonable best efforts to cause their respective officers, directors or employees, and any investment banker, financial advisor, attorney, accountant retained by, or other advisor or representative of, it to immediately cease any discussions or negotiations with any parties other than the Purchaser and the Parent that no Representative of may be ongoing with respect to an Acquisition Proposal. The Company and its subsidiaries shall not, and shall not authorize or permit any of the Acquired Corporations their respective officers, directors or employees or any investment banker, financial advisor, attorney, accountant retained by, or other advisor or representative of, it to, directly or indirectly doesindirectly, any of the following: (i) solicit, initiateinitiate or encourage (including by way of furnishing nonpublic information), knowingly encourageor take any other action to facilitate, induce any inquiries or knowingly facilitate the making, submission or announcement making of any Acquisition Proposal proposal that constitutes, or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations may reasonably be expected to any Person in connection with or in response to lead to, an Acquisition Proposal or Acquisition Inquiry; (iiiii) engage participate in any discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any regarding an Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, thatthat if, notwithstanding anything contained in this Section 4.3(a), at any time prior to the adoption and approval of this Agreement by the Required Stockholder Voteholders of Common Stock, the Company mayBoard determines in good faith, (A) in response after consultation with Outside Counsel, that failure to an Acquisition Inquiry that has been made by such Person (and not withdrawndo so would constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company, subject to compliance with Section 6.8(c), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (I) was unsolicited and that did not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly otherwise result from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 6.8(a), and (II) constitutes a Superior Proposal, may (x) furnish nonpublic information with respect to the Company and its subsidiaries to the person who made such Acquisition Proposal pursuant to a customary and reasonable confidentiality agreement and (y) participate in negotiations regarding such Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or officer of the CompanyCompany or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative of the taking Company or any of such action by such Representative its subsidiaries, whether or not acting on behalf of the Company or any of its subsidiaries, shall be deemed to constitute be a breach of this Section 4.3 6.8(a) by the Company for Company. For purposes of this Agreement. (b) If , "Acquisition Proposal" means any Acquired Corporation proposal or offer from any person relating to any direct or indirect acquisition or purchase of 10% or more of the assets of the Company or any Representative of its subsidiaries (including Intellectual Property) or the direct or indirect acquisition or purchase of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at shares of any time during the Pre-Closing Period, then class of outstanding equity securities of the Company shall promptly or any of its subsidiaries (and except as may be explicitly permitted by this Agreement), any tender offer or exchange offer that if consummated would result in no event later than 48 hours after receipt any person beneficially owning 10% or more of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing any class of such Acquisition Proposal or Acquisition Inquiry (including the identity equity securities of the Person making Company or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party its subsidiaries or under which any of the Acquired Corporations has any rightsmerger, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.consolidation,

No Solicitation. (a) The Company Subject to Section 7, each Securityholder, solely in its capacity as such, shall not directly or indirectly donot, and shall ensure that no Representative of any of the Acquired Corporations cause its Subsidiaries and its and its Subsidiaries’ directors and officers to not, and shall use its reasonable best efforts to cause its Affiliates and Representatives not to, directly or indirectly does, any of the followingindirectly: (ia) solicit, initiate, knowingly encourageinduce, induce knowingly encourage or knowingly facilitate (including by way of granting a waiver under Section 203 of the makingDGCL), submission any inquiries or announcement the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal or Acquisition InquiryProposal; (iib) furnish participate in any non-public information discussions or negotiations or cooperate in any way with any Person regarding any proposal or offer the consummation of which would constitute a Company Acquisition Proposal; (c) provide any information or data concerning the Acquired Corporations Company or any of its Subsidiaries to any Person in connection with or in response to an any proposal the consummation of which would constitute a Company Acquisition Proposal or for the purpose of soliciting, initiating, inducing, encouraging or facilitating a Company Acquisition InquiryProposal; (iiid) engage enter into any binding or nonbinding letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, agreement in discussions principle, option agreement, joint venture agreement, partnership agreement, lease agreement or negotiations with any Person other similar agreement with respect to any a Company Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating proposal or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry offer that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is could reasonably likely be expected to lead to a Superior OfferCompany Acquisition Proposal; (3e) the board adopt, approve or recommend or make any public statement approving or recommending any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal (including by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of directors determines in good faith by majority vote, after having considered the advice Section 203 of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal RequirementsDGCL); (4f) at least two take any action to exempt any Person (other than Parent and its Subsidiaries) from the restriction on “business days prior to furnishing combinations” or any such nonpublic information to, similar provision contained in applicable takeover laws or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, Charter or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable Bylaws; or (g) resolve, publicly propose or agree to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing do any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The From the date hereof until termination or Closing of this Agreement, the Company agrees that it shall not not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company, directly or indirectly doindirectly, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: to (i) solicit, initiate, knowingly encourageor encourage any inquiries relating to, induce or knowingly facilitate the makingsubmission of, submission or announcement of any Acquisition Takeover Proposal or Acquisition Inquiry; (defined below), (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse approve or recommend any Acquisition Takeover Proposal; or (v) execute , accept any Takeover Proposal or enter into any letter of intent intent, agreement in principle or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating agreement with respect to any Acquisition TransactionTakeover Proposal (or resolve to or publicly propose to do any of the foregoing), or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, any Takeover Proposal; provided, however, that, notwithstanding anything that (x) nothing contained in this Section 4.3(a)subclauses (ii) or (iii) above shall prohibit the Company or its board of directors from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the ‘34 Act, provided that the board of directors of the Company shall not recommend that the stockholders of the Company tender their Company Common Stock in connection with any such tender or exchange offer unless the board of directors shall have determined in good faith, after consultation with its financial advisors and outside counsel, that failing to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the board of directors and that the relevant Takeover Proposal is a Superior Proposal (as defined below) and (y) prior to the Shareholders’ Meeting, if the Company receives an unsolicited bona fide written Takeover Proposal from a third party that the board of directors of the Company determines in good faith (after receiving the advice of a financial adviser of nationally or regionally recognized reputation) is reasonably likely to be a Superior Proposal, the Company and its representatives may conduct such discussions or provide such information as the board of directors of the Company shall determine, but only if, prior to the adoption and approval such provision of this Agreement by the Required Stockholder Vote, the Company mayinformation or conduct of such discussions, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Personthird party shall have entered into a confidentiality agreement, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors of the Company determines in its good faith by majority votejudgment, after having considered the advice of the Company’s consultation with outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure it is required to take such action would be reasonably likely do so in order to result in a breach of comply with its fiduciary obligations to duties. The Company shall promptly notify Parent in the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing event it receives any such nonpublic information toTakeover Proposal, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of including the identity of the party submitting such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementproposal. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the The Company shall promptly (and but in no event later than 48 24 hours after receipt of such Acquisition Proposal or Acquisition Inquiryreceipt) advise notify Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making material terms, conditions and other aspects of any inquiries, proposals or submitting such Acquisition Proposal offers with respect to, or Acquisition Inquirywhich could reasonably be expected to lead to, a Takeover Proposal, and the terms thereof). The Company shall keep Parent fully informed with respect of any modifications or revisions to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoTakeover Proposal. (c) The For purposes of this Agreement, “Takeover Proposal” means any proposal or offer (whether or not in writing and whether or not delivered to the stockholders of the Company shall immediately generally) for a merger or other business combination, reorganization, share exchange, recapitalization, liquidation, dissolution or similar transaction involving the Company or to acquire in any manner (including by tender or exchange offer), directly or indirectly, a 25% or more equity interest in, any voting securities of, or assets (including equity interests in other entities) of the Company having an aggregate value equal to 10% or more of the Company’s consolidated net asset value, other than the transactions contemplated by this Agreement. For purposes of this Agreement, “Superior Proposal” means any unsolicited bona fide written Takeover Proposal which (i) contemplates (A) a merger or other business combination, reorganization, share exchange, recapitalization, liquidation, dissolution, tender offer, exchange offer or similar transaction involving the Company as a result of which the Company’s stockholders prior to such transaction in the aggregate cease to own at least 20% of the voting securities of the ultimate parent entity resulting from such transaction, or (B) a sale, lease, exchange, transfer or other disposition (including, without limitation, a contribution to a joint venture) of at least 10% of the value of the net assets of the Company, taken as a whole, and cause (ii) is on terms which the board of directors of the Company determines (after consultation with its financial advisor and outside counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (A) would, if consummated, result in a transaction that is more favorable to its stockholders from a financial point of view (in their capacities as such) than the transactions contemplated by this Agreement (including the terms of any proposal by Parent to modify the terms of the transactions contemplated by this Agreement), and (B) is reasonably likely to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiryfinanced and otherwise completed without undue delay. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The During the Pre-Closing Period, Company shall not not, directly or indirectly doindirectly, and the Company shall use commercially reasonable efforts to ensure that no Representative of any its Subsidiaries and the respective Representatives of the Acquired Symyx Corporations do not, directly or indirectly does, any of the following: indirectly: (i) solicit, initiate, knowingly encourage, induce encourage or knowingly facilitate the making, submission or announcement of any Company Acquisition Proposal or Acquisition Inquiry; Proposal; (ii) furnish any non-public information regarding any of the Acquired Symyx Corporations to any Person in connection with or in response to an any Company Acquisition Proposal or Acquisition Inquiry; Proposal; (iii) engage in discussions or negotiations with any Person with respect relating to, or that prior to such discussions or negotiations would reasonably be expected to give rise to, any Company Acquisition Proposal on Acquisition Inquiry; Proposal; (iv) approve, endorse or recommend any Company Acquisition Proposal; or or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), that prior to the adoption and approval of this Agreement by the Required Company Stockholder Vote, this Section 4.4(a) shall not prohibit the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic from furnishing information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Symyx Corporations to, or enter entering into discussions or conduct and negotiations with, such Person, in the case of each of any Person if: (A) the Company shall have received from such Person a bona fide Company Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Company Board determines in good faith is, or would reasonably be expected to result in, a Company Superior Offer (and such proposal has not been withdrawn); (B) if: (1) such Company Acquisition Proposal shall did not have arisen directly or indirectly result from any breach of of, or any action inconsistent with, any of the provisions set forth in this Section 4.34.4(a); (2C) the board of directors determines Company Board concludes in good faith by majority votefaith, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s consulted with its outside legal counsel, that failure to take such action would reasonably be reasonably likely expected to result in constitute a breach of its the fiduciary obligations duties of the Company Board to the Company’s stockholders under applicable Legal Requirementslaw; (4D) at least two four business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; , and (5) the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to the Company as those contained in the provisions of the Confidentiality AgreementAgreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (6E) concurrently with at least four business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such information has not been previously furnished by the Company to Parent or Made Available to Parent). Without limiting the generality foregoing, any violation of the foregoing, restrictions contained in this Section 4.4(a) by any Subsidiary or Representative of the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute shall be deemed a breach of this Section 4.3 4.4(a) by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during During the Pre-Closing Period, then Parent shall not, directly or indirectly, and Parent shall use commercially reasonable efforts to ensure that its Subsidiaries and the respective Representatives of the Accelrys Corporations do not, directly or indirectly: (i) solicit, initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Parent Acquisition Proposal; (ii) furnish any information regarding any of the Accelrys Corporations to any Person in connection with or in response to any Parent Acquisition Proposal; (iii) engage in discussions or negotiations with any Person relating to, or that prior to such discussions or negotiations would reasonably be expected to give rise to, any Parent Acquisition Proposal; (iv) approve, endorse or recommend any Parent Acquisition Proposal; or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Parent Acquisition Transaction; provided, however, that prior to the approval of the Parent Proposals (as defined in Section 5.3(a)) by the Required Parent Stockholder Vote, this Section 4.4(b) shall not prohibit Parent from furnishing information regarding the Accelrys Corporations to, or entering into discussions and negotiations with, any Person if: (A) the Parent shall have received from such Person a bona fide Parent Acquisition Proposal that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, the Parent Board determines in good faith is, or would reasonably be expected to result in, a Parent Superior Offer (and such proposal has not been withdrawn); (B) such Parent Acquisition Proposal did not result from any breach of, or any action inconsistent with, any of the provisions set forth in this Section 4.4(b); (C) the Parent Board concludes in good faith, after having consulted with its outside legal counsel, that failure to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the Parent Board to Parent’s stockholders under applicable law; (D) at least four business days prior to furnishing any information to, or entering into discussions or negotiations with, such Person, Parent gives the Company written notice of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable to Parent as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (provided, however, that no such confidentiality agreement need include “standstill” provisions); and (E) at least four business days prior to furnishing any information to such Person, Parent furnishes such information to the Company (to the extent such information has not been previously furnished by Parent to the Company or Made Available to the Company). Without limiting the foregoing, any violation of the restrictions contained in this Section 4.4(b) by any Subsidiary or Representative of Parent shall be deemed a breach of this Section 4.4(b) by Parent. (c) During the Pre-Closing Period, the Company shall promptly (and in no event later than 48 hours 24 hours) after receipt of such any Company Acquisition Proposal or Acquisition InquiryProposal: (i) advise Parent orally and in writing of any such Company Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Company Acquisition Proposal or Acquisition Inquiry, and the terms thereof)) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to Parent a copy of any written Company Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by the Company in connection with such Company Acquisition Proposal. The Company shall keep Parent fully reasonably informed with respect to to: (A) the status of any such Company Acquisition Proposal, and (B) the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or proposed material modification thereto. The Company shall provide Parent with 48 hours prior notice (or such lesser notice as is provided to the members of the Company Board) of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Company Acquisition Proposal. (cd) During the Pre-Closing Period, Parent shall promptly (and in no event later than 24 hours) after receipt of any Parent Acquisition Proposal: (i) advise the Company orally and in writing of any such Parent Acquisition Proposal (including the identity of the Person making or submitting such Parent Acquisition Proposal and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and (ii) provide to the Company a copy of any written Parent Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by Parent in connection with such Parent Acquisition Proposal. Parent shall keep the Company reasonably informed with respect to: (A) the status of any such Parent Acquisition Proposal, and (B) the status and terms of any material modification or proposed material modification thereto. Parent shall provide the Company with 48 hours prior notice (or such lesser notice as is provided to the members of the Parent Board) of any meeting of the Parent Board at which the Parent Board is reasonably expected to consider any Parent Acquisition Proposal. (e) The Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions prior to or existing as of the date of this Agreement with any Person that relate to any Company Acquisition Proposal or Acquisition InquiryProposal. (df) The Parent shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Parent Acquisition Proposal. (g) Each of Parent and the Company shall agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of or right underof, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction Contract to which any such party or any of the Acquired Corporations its Subsidiaries is a party or under which any such party or any of the Acquired Corporations its Subsidiaries has any rights, and shall enforce or will use its commercially reasonable efforts to cause to be enforced each such agreement to be enforced at the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsother party to this Agreement.

No Solicitation. (a) The From and after the date hereof, the Company shall not directly or indirectly dowill not, and shall ensure that no Representative will not authorize or (to the extent within its control) permit any of its officers, directors, employees, agents, affiliates and other representatives or those of any of the Acquired Corporations its Subsidiaries (collectively, "Company Representatives") to, directly or indirectly doesindirectly, initiate, encourage or solicit (including by way of providing information) any prospective acquiror or the invitation or submission of any inquiries, proposals or offers or any other efforts or attempts that constitute, or may reasonably be expected to lead to, any Company Acquisition Proposal (as hereinafter defined) from any Person or engage in any negotiations with respect thereto or otherwise cooperate with or assist or participate in, or facilitate any such proposal; PROVIDED, HOWEVER, that, notwithstanding any other provision of the following: this Agreement, (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement Company's Board of any Acquisition Proposal or Acquisition Inquiry; Directors may take and disclose to the stockholders of the Company a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act and (ii) furnish following receipt from a third party, without any non-public information regarding solicitation, encouragement or initiation, directly or indirectly, by the Company or any Company Representative, of a bona fide Company Acquisition Proposal, (x) the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) Company may engage in discussions or negotiations with any Person with respect such third party and may furnish such third party information concerning it, and its business, properties and assets if such third party executes a confidentiality agreement in reasonably customary form and (y) the Board of Directors of the Company may withdraw, modify or not make its recommendation referred to any Acquisition Proposal on Acquisition Inquiry; (ivin Section 5.11(b) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of terminate this Agreement by the Required Stockholder Votein accordance with Article 7, the Company may, (A) but in response each case referred to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of foregoing clauses (Ai) and (B) if: (1) such Acquisition Proposal ii), only to the extent that the Company's Board of Directors shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines conclude in good faith by majority vote, after having considered based on the advice of the Company’s 's outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or action is reasonably likely to lead to a Superior Offer; (3) the board of directors determines necessary in good faith by majority vote, after having considered the advice of order for the Company’s outside legal counsel, that failure 's Board of Directors to take such action would be reasonably likely to result act in a breach of manner that is consistent with its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this AgreementLaw. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by the Company or any Company Representatives with respect to or as of any Company Acquisition Proposal existing on the date hereof. (c) The Company will promptly (and in any event within 24 hours) communicate to Newco the terms and conditions of this Agreement with any Person that relate to any Company Acquisition Proposal or that it may receive and will keep Newco informed, as promptly as reasonably practicable, as to the status of any actions, including any discussions, taken pursuant to such Company Acquisition InquiryProposal. (d) The As used in this Agreement, "Company shall not release Acquisition Proposal" means any inquiry, proposal or permit the release of offer from any Person fromrelating to any direct or indirect acquisition or purchase of a business that constitutes one-third or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or waive one-third or permit more of the waiver of any provision of or right underoutstanding Company Common Stock, any confidentialitytender offer or exchange offer that if consummated would result in any Person beneficially owning one-third or more of the outstanding Company Common Stock, non-solicitationor any merger, no hireconsolidation, “standstill” business combination, recapitalization, liquidation, dissolution or similar agreement in connection with, relating to, transaction involving the Company (or which could be deemed to relate to any Subsidiary or facilitate, an Acquisition Proposal Subsidiaries whose business constitutes one-third or Acquisition Transaction to which any more of the Acquired Corporations is a party net revenues, net income or under which any assets of the Acquired Corporations has any rightsCompany and its Subsidiaries taken as a whole), and shall enforce or cause to be enforced each such agreement to other than the extent requested transactions contemplated by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Agreement.

No Solicitation. (a) The Prior to the Effective Time, the Company shall not directly agrees that neither it, any of its respective Subsidiaries or indirectly doaffiliates, and shall ensure that no Representative of nor any of the Acquired Corporations respective directors, executive officers, agents or representatives of the foregoing, will, directly or indirectly doesindirectly, any of the following: (i) solicit, initiate, knowingly encourage, induce initiate or knowingly facilitate encourage (including by way of furnishing information) any inquiries or the making, submission or announcement making of any proposal with respect to any merger, consolidation or other business combination involving the Company or any Subsidiary of the Company or the acquisition of all or any significant part of the assets or capital stock (including but not limited to a majority voting interest) of the Company or any Subsidiary of the Company (an "Acquisition Proposal Transaction") or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with negotiate or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) otherwise engage in discussions or negotiations with any Person person (other than Holdings and its representatives) with respect to any Acquisition Proposal on Transaction, or which may reasonably be expected to lead to a proposal for an Acquisition Inquiry; (iv) approveTransaction, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any agreement, arrangement or understanding (including any letter of intent intent, agreement in principle or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3agreement) contemplating or otherwise relating with respect to any such Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to a proposal or inquiry unsolicited after the Original Execution Date, furnish information to, negotiate or otherwise engage in discussions with any person (pursuant to a customary confidentiality agreement) which makes or indicates in writing an Acquisition Inquiry that intention or desire to make, and with respect to whom the Board of Directors of the Company has been made by such Person concluded in good faith after consultation with its financial advisor is reasonably capable of making, a Superior Proposal (and not withdrawnas herein defined), furnish nonpublic information regarding if the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors Company determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with its outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach inconsistent with the fiduciary duties of its fiduciary obligations to the Company’s stockholders Board of Directors of the Company under applicable Legal Requirements; (4) at least two business days prior to furnishing any law and such nonpublic information toproposed Acquisition Transaction was not solicited by it in, or entering into discussions or negotiations withdid not otherwise result from a, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by 6.2 and subject to compliance with the Company, the taking of such action by such Representative shall be deemed to constitute a breach other provisions of this Section 4.3 by 6.2; and provided further that notwithstanding anything to the contrary herein contained, the Board of Directors of the Company may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act, comply with Rule 14d-9 thereunder and make all other disclosures required by applicable law. Any of the foregoing to the contrary notwithstanding, the Company may engage in discussions with or provide information to any person or group that has made a proposal unsolicited after the Original Execution Date with respect to an Acquisition Transaction for purposes the limited purpose of this Agreementdetermining whether such proposal is, or could lead to, a Superior Proposal. (b) If any Acquired Corporation or any Representative Except as would be inconsistent with the fiduciary duties of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing PeriodCompany's Board of Directors under applicable law, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity agrees that, as of the Person making or submitting such Acquisition Proposal or Acquisition InquiryOriginal Execution Date, it, its Subsidiaries and affiliates, and the terms thereof). The Company shall keep Parent fully informed with respect to respective directors, executive officers, agents and representatives of the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company foregoing, shall immediately cease and cause to be terminated any existing activities, discussions prior to or as of the date of this Agreement negotiations with any Person that relate person (other than Holdings and its representatives) conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry. (d) Transaction. The Company shall not release agrees to promptly advise Holdings, its Subsidiaries or permit the release affiliates, of any Person inquiries or proposals received by, any such information requested from, or waive any negotiations or permit the waiver of any provision of discussions sought to be initiated or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection continued with, relating tothe Company, its Subsidiaries or affiliates, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party respective directors, executive officers, agents or under which any representatives of the Acquired Corporations has any rightsforegoing, in each case from a person (other than Holdings and its representatives) with respect to an Acquisition Transaction, and shall enforce or cause to be enforced each a reasonable summary of the terms thereof, including the identity of such agreement to third party (unless disclosing the extent requested by Parent. The Company shall promptly request each Person that has executed a identity of such third party would violate the terms of any confidentiality or similar agreement binding on the Company and entered into on or prior to September 19, 1997), including any financing arrangement or commitment in connection therewith, and, except as otherwise would be inconsistent with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any fiduciary duties of the Acquired CorporationsCompany's Board of Directors under applicable law, to update on an ongoing basis or upon Holdings' reasonable request, the status thereof, as well as any actions taken or other developments pursuant to this Section 6.

No Solicitation. (a) The From the date of this Agreement until the Closing Date, the Company shall not agrees that it will not, directly or indirectly dothrough any officer, and shall ensure that no Representative of any of the Acquired Corporations directly Subsidiary, Affiliate, director, employee, stockholder, representative, agent or indirectly doesother person, any of the following: (i) solicitseek, initiate, knowingly encouragesolicit or encourage any Person to make an Acquisition Proposal, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish engage in negotiations or discussions concerning an Acquisition Proposal with any person or group, (iii) disclose any non-public information regarding relating to the Company or give access to the properties, employees, books or records of the Company or any of the Acquired Corporations its subsidiaries to any Person person or group in connection with or in response to an any Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse approve or recommend or agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors or a committee thereof from (A) furnishing information to any person that has made an Acquisition Proposal not solicited in violation of this paragraph or (vB) execute subject to the other provisions of this paragraph, entering into or enter into participating in discussions or negotiations concerning an Acquisition Proposal not solicited in violation of this paragraph so long as, in any letter case, (x) the Board of intent Directors or similar document such committee shall have concluded in good faith (after receiving and considering the advice of its outside legal counsel) that failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors or such committee to be in breach of its fiduciary duties to the Company Shareholders under applicable law, and (y) prior to participating in such discussions or negotiations or furnishing any Contract such information, the Company and the party making such offer agrees to a confidentiality agreement on terms that are, in the aggregate, no less favorable to the Company than those of the Confidentiality Agreement (other than confidentiality agreements the standstill provisions thereof) and the New Investor is given concurrent or advance written no- tice ▇▇▇reof unless the Board of Directors or such committee shall have concluded in good faith, after receiving and considering the advice of its outside counsel, that doing so would cause it to be in breach of its fiduciary responsibilities to the Company Shareholders under applicable law. The Board of Directors or such committee may (x) fail to make, withdraw or modify in a manner adverse to the New Investor its recommendation to its stockholders referred to in Section 5.03, (y) take and disclose to the Company Shareholders a position contemplated by this Section 4.3) contemplating Rule 14e-2 under the 1934 Act or otherwise relating complying with its disclosure obligations and/or (z) take any non-appealable, final action ordered to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement be taken by the Required Stockholder VoteCompany by any court of competent jurisdiction, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, but in the case of each clause (x) or (y) only if the Board of (A) and (B) if: (1) Directors or such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines committee determines, in good faith by majority vote, after having considered the advice of the Company’s consultation with outside legal counsel and to the Financial Advisor Company, that such Acquisition Proposal constitutes a Superior Offer or action is reasonably likely to lead to a Superior Offer; (3) consistent with the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach exercise of its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementlaw. (b) If any Acquired Corporation or any Representative The Company shall notify the New Investor in writing no later than the end of the next business day after receipt thereof of the receipt of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during (including a copy thereof if in writing), the Pre-Closing Period, then the Company shall promptly (terms and in no event later than 48 hours after receipt conditions of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)it. The Company also shall keep Parent fully informed with respect to promptly notify the status and terms New Investor no later than the end of the next Business Day of any change to or modification of such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoProposal. (c) The Company shall, and shall cause its Subsidiaries and the advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to or as of the date of this Agreement hereof with any Person that relate respect to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce use commercially reasonable efforts to cause any such Party (or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality its agents or similar agreement advisors) in connection with its consideration possession of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore about the Company that was furnished to such Person by or on behalf of any of the Acquired CorporationsCompany to return or destroy all such information.

No Solicitation. (a) The From and after the date hereof, the Company shall not directly or indirectly dowill not, and shall ensure that no Representative use its reasonable best efforts not to permit, any of its officers, directors, employees, attorneys, financial advisors, agents or other representatives or those of any of the Acquired Corporations its Subsidiaries to, directly or indirectly doesindirectly, any of the following: (i) solicit, initiate, knowingly encourage, induce solicit or knowingly facilitate the making, submission or announcement of encourage any Acquisition Takeover Proposal or Acquisition Inquiry; (ii) furnish from any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) person. The Company may engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approvewith, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, furnish information concerning the Company mayand its Subsidiaries, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn)businesses, furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations properties or assets to, or enter into discussions or conduct negotiations with, such Person, in any third party which has made an unsolicited Takeover Proposal if the case Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any Directors of the provisions set forth in this Section 4.3; (2) the board of directors determines Company concludes in good faith by majority voteat a meeting of the Board, after having considered the received advice of from the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside 's legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; law. The Company will promptly (4but in no case later than 24 hours) at least two business days prior to furnishing notify Newco, orally and in writing, of the receipt of any such nonpublic information toTakeover Proposal, or entering into discussions or negotiations with, such Person, including the Company gives Parent written notice of material terms and conditions thereof (and any change in the material terms and conditions thereof) and the identity of the person making such Person Takeover Proposal, and will promptly (but in no case later than 24 hours) notify Newco, orally and in writing, of any determination by the Company's Board of Directors that a Superior Proposal (as hereinafter defined) has been made. Prior to providing any information or data to any person in connection with a Takeover Proposal pursuant to this Section 5.09, the Board of Directors of the Company’s intention Company shall receive from such person a confidentiality agreement in a customary form. As used in this Agreement, (i) "Takeover Proposal" shall mean any bona fide proposal or offer made by any third party prior to furnish nonpublic information tothe stockholder vote at the Company Meeting (other than a proposal or offer by Newco or any of its Subsidiaries) for a merger, consolidation or other business combination involving, or enter into discussions any purchase of, all or negotiations withsubstantially all of the assets or more than 50% of the voting securities of, such Person; the Company, and (5ii) "Superior Proposal" shall mean a bona fide Takeover Proposal made by a third party on terms that a majority of the disinterested members of the Board of Directors of the Company receives from such Person reasonably determines in good faith (in consideration of advice of an executed confidentiality agreement containing provisions at least as independent financial advisor) is more favorable to the Company as those contained in and to its stockholders than the Confidentiality Agreement; and transactions contemplated hereby (6) concurrently with furnishing any such nonpublic information to such Personincluding taking into account, among other things, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms financing thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company shall and its Subsidiaries will not, and the Company will direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly doindirectly, and shall ensure that no Representative of take any of the Acquired Corporations directly or indirectly does, any of the following: (i) action to solicit, initiate, knowingly encourage, induce or knowingly encourage or facilitate the making, submission or announcement making of any Acquisition Proposal (including without limitation by amending, or Acquisition Inquiry; (ii) furnish granting any non-public information regarding any waiver under, Article NINTH of the Acquired Corporations to Company Charter or Section 203 of the DGCL) or any Person in connection inquiry with respect thereto or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the existence of the provisions of this Section 7.8), or disclose any nonpublic information or afford access to properties, books or records to any Acquisition Proposal on Acquisition Inquiry; (iv) approvePerson that has made, endorse or recommend to the Company’s knowledge is considering making, any Acquisition Proposal; , or (v) approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise agreement relating to an Acquisition Proposal, or propose publicly or agree to do any of the foregoing relating to an Acquisition TransactionProposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or (ii) making any disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, however, that, notwithstanding that any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding anything contained to the contrary in this Agreement but subject to the first sentence of Section 4.3(a7.8(b), prior to (but not after) the adoption and approval date of this Agreement by the Required Company Stockholder VoteApproval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to an a request for information or access, to any Person making a bona fide, written Acquisition Inquiry that has been made by such Person (and Proposal to the Board of Directors of the Company after the date hereof which was not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, obtained in breach of Section 5.2 or this Section 7.8 and (B) participate in response discussions and negotiate with such Person or its representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company concludes in good faith, after (x) receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (y) taking into account any revisions to the terms of the Merger or this Agreement proposed by Parent after being notified pursuant to Section 5.2(b), that failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law and (2) (x) the Company receives from the Person making such an Acquisition Proposal, prior to engaging in any of the activities described in clause (A) or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to the Person making such Acquisition Proposal that has been made by than those contained in the Confidentiality Agreement and (y) any information provided to such Person (and not withdrawn), furnish nonpublic information regarding has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the Acquired Corporations to, or enter into discussions or conduct negotiations with, time it is provided to such Person, . The Board of Directors of the Company shall not take any of the actions referred to in the case of each of foregoing clauses (A) and (B) if: (1) such Acquisition Proposal unless the Company shall not have arisen directly or indirectly from any breach of any of first delivered to Parent written notice advising Parent that the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure Company intends to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementaction. (b) If any Acquired Corporation In the event that on or any Representative after the date of any Acquired Corporation this Agreement the Company receives an Acquisition Proposal Proposal, or Acquisition Inquiry at any time during the Pre-Closing Period, then request for nonpublic information relating to the Company shall or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company’s knowledge may be considering making, an Acquisition Proposal, the Company will (A) promptly (and in no event later than 48 twenty-four (24) hours after receipt of thereof) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal or Acquisition Inquiryrequest and set forth the material terms thereof) advise Parent orally thereof, (B) keep Parent reasonably and in writing promptly informed of such Acquisition Proposal or Acquisition Inquiry the status and material terms of (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to changes to the status and or material terms of of) any such Acquisition Proposal or Acquisition Inquiry request and (C) as promptly as practicable (but in no event later than twenty-four (24) hours after receipt) provide to Parent unredacted copies of all material correspondence and written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions thereof, including any proposed transaction agreements (along with all schedules and exhibits thereto and any modification or proposed modification financing commitments related thereto. (c) ), as well as written summaries of any material oral communications relating to the terms and conditions thereof. The Company (x) shall, and shall cause its Subsidiaries to, immediately cease and cause to be terminated any and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to or as of the date of this Agreement hereof with any Person that relate Persons with respect to any Acquisition Proposal or Acquisition Inquiry. the possibility thereof, (dy) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person Person, if any, that has executed a confidentiality or similar agreement within the nine (9) months prior to the date hereof in connection with its consideration of a possible any Acquisition Transaction or equity investment Proposal to return to the Acquired Corporations or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries and (z) immediately terminate all physical and electronic data room access for such Person and their representatives to diligence or other information regarding the Acquired CorporationsCompany or any of its Subsidiaries. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any such Acquisition Proposal and shall enforce the provisions of any such agreement; provided that the Company shall be permitted on a confidential basis, upon written request by a relevant party thereto or without prior notice to Parent disclosing the party and the circumstances, release or waive any standstill obligations solely to the extent necessary to permit the party referred therein to submit an Acquisition Proposal to the Board of Directors of the Company on a confidential basis. The Company shall provide written notice to Parent of waiver or release of any standstill by the Company, including disclosure of the identities of the parties thereto and circumstances relating thereto.

No Solicitation. (a) The Company DBC and the DBC Subsidiaries shall not directly or indirectly donot, and shall ensure that no Representative of not authorize or permit any of the Acquired Corporations directly their officers, directors or indirectly doesemployees or any investment banker, any financial advisor or attorney to initiate or encourage (including by way of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any furnishing non-public information regarding information), or take any other action to facilitate, any inquiries or the making of the Acquired Corporations any proposal that constitutes, or may reasonably be expected to any Person in connection with or in response to lead to, an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approveProposal, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, thatthat if, notwithstanding anything contained at any time the Board of Directors of DBC determines in this Section 4.3(a)good faith, prior based on the written advice of outside counsel, that failure to the adoption and approval do so would be reasonably likely to constitute a breach of this Agreement by the Required Stockholder Voteits fiduciary duties under applicable law, the Company mayDBC, (A) in response to an a written Acquisition Inquiry Proposal that has been made by such Person (and i) was unsolicited or that did not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Personotherwise result from a breach of this Section, and (Bii) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior OfferProposal, may (x) furnish non-public information with respect to DBC or the DBC Subsidiaries to the person who made such Acquisition Proposal pursuant to a customary confidentiality agreement and (y) participate in negotiations regarding such Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or officer of DBC or any of the DBC Subsidiaries or any investment banker, financial advisor, attorney, accountant, or other representative of DBC or any of the DBC Subsidiaries, whether or not acting on behalf of DBC or any of its subsidiaries, shall be deemed to be a breach of this Section by DBC. (b) DBC shall call a meeting of its shareholders to be held as promptly as practicable for the purpose of voting upon this Agreement and shall take, in good faith, all actions which are necessary or appropriate on its part in order to secure the approval of this Agreement by its shareholders at the meeting, including recommending the approval of this Agreement by DBC's shareholders; provided, however, that DBC's Board of Directors shall not be required to take any action otherwise required by this sentence that it has determined in good faith, based on the advice of outside counsel, would be reasonably likely to constitute a breach of its fiduciary duties under applicable law. (c) The Board of Directors of DBC shall not (1) fail to recommend this Agreement, withdraw or modify, or propose to withdraw or modify, in a manner adverse to FFC, its approval or recommendation of this Agreement or the Merger unless there is an Acquisition Proposal outstanding, (2) approve or recommend, or propose to approve or recommend, an Acquisition Proposal or (3) cause DBC to enter into any letter of intent, agreement in principle, acquisition agreement or other agreement with respect to an Acquisition Proposal unless (x) the board Board of directors determines Directors of DBC shall have determined in good faith by majority votefaith, after having considered based on the written advice of the Company’s outside legal counsel, that failure to take such action do so would be reasonably likely to result in constitute a breach of its fiduciary obligations duties under applicable law and (y) the applicable Acquisition Proposal is a Superior Proposal. (d) Nothing contained in this Section shall prohibit DBC from at any time taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended, provided, however, that neither DBC nor its Board of Directors shall, except as permitted by paragraph (b) of this section, propose to approve or recommend, an Acquisition Proposal. (e) DBC shall promptly (but in any event within one day) advise FFC orally and in writing of any Acquisition Proposal or any inquiry regarding the making of an Acquisition Proposal including any request for information, the material terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the person making such request, Acquisition Proposal or inquiry. DBC will, to the Company’s stockholders extent reasonably practicable, keep FFC fully informed of the status and details (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. (i) In the event the Board of Directors of DBC takes any of the actions set forth in clauses (1), (2) and/or (3) of Section 5.7(c) in compliance with the standards in (x) and (y) therein, such action shall allow termination of this Agreement by FFC under Section 8.1(b)(iii) herein which shall be treated in the same manner as termination under Section 8.1 (a) herein and shall allow exercise of the Warrant. In the event the Board of Directors of DBC takes any of the actions set forth in clauses (1), (2) and/or (3) of Section 5.7(c) without compliance with the standards in (x) and (y) therein, such action shall constitute a breach allowing termination of this Agreement by FFC under Section 8.1(c)(iii) herein which shall be treated in the same manner as termination by FFC under Section 8.1(b)(i) herein and shall allow exercise of the Warrant. (ii) This Agreement may be terminated by DBC prior to the shareholders meeting of DBC if (A) the Board of Directors of DBC shall have determined in good faith based on the advice of outside counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to DBC's shareholders under applicable Legal Requirementslaw, (B) it is not in breach of its obligations under this Section 5.7 in any material respect and has complied with, and continues to comply with, all requirements and procedures of this Section 5.7 in all material respects and has authorized, subject to complying with the terms of this Agreement, DBC to enter into a binding written agreement for a transaction that constitutes a Superior Proposal and DBC notifies FFC in writing that it intends to enter into such agreement, attaching the most current version of such agreement to such notice; (4C) at least two FFC does not make, within five (5) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent after receipt of DBC's written notice of the identity of such Person and of the Company’s its intention to furnish nonpublic information to, or enter into discussions or negotiations witha binding agreement for a Superior Proposal, such Person; any offer that the Board of Directors reasonably and (5) the Company receives from such Person an executed confidentiality agreement containing provisions in good faith determines, after consultation with its financial and legal advisors, is at least as favorable to the Company shareholders of DBC as those contained the Superior Proposal and during such period DBC reasonably considers and discusses in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Persongood faith all proposals submitted by FFC and, the Company furnishes such nonpublic information to Parent. Without without limiting the generality of the foregoing, the Company acknowledges meets with, and agrees thatcauses its financial and legal advisors to meet with, FFC and its advisors from time to time as required by FFC to consider and discuss in the event any Representative of any good faith FFC's proposals, and (D) prior to DBC's termination pursuant to this Section 5.7(f)(ii), DBC confirms in writing that such termination allows exercise of the Acquired Corporations Warrant. DBC agrees (whether or x) that it will not enter into a binding agreement referred to in clause (B) above until at least the five (5) business days after FFC has received the notice to FFC required by clause (B) and (y) to notify FFC promptly if its intention to enter into a binding agreement referred to in its notice to FFC shall change at any time after giving such Representative is purporting to act on behalf of any of notice. (g) For the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach purpose of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.5.7:

No Solicitation. (a) The Neither Brainworks, the Company nor the LLC shall directly or indirectly, and shall not authorize or permit any of the other Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC) to, (i) directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Inquiry; Proposal, (ii) furnish any non-public information regarding any of the Acquired Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC) to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Inquiry; Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; Proposal, (iv) approve, endorse or recommend any Acquisition Proposal; Proposal or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition TransactionTransaction (other than the transactions contemplated by this Agreement); provided, however, that, notwithstanding anything contained in that this Section 4.3(a)4.4(a) shall not prohibit Brainworks from furnishing nonpublic information regarding the Brainworks Corporations to, prior to the adoption and approval of this Agreement by the Required Stockholder Voteor entering into discussions with, the Company may, (A) any Person in response to an Acquisition Inquiry a Superior Proposal that has been made is submitted to Brainworks by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: if (1) such Acquisition Proposal shall not have arisen directly or indirectly from neither Brainworks nor any breach Representative of any of the provisions Brainworks Corporations shall have violated any of the restrictions set forth in this Section 4.3; 4.4, (2) the board of directors determines of Brainworks concludes in good faith by majority votefaith, after having considered taken into account the written advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s its outside legal counsel, that failure to take such action would be reasonably likely is required in order for the board of directors of Brainworks to result in a breach of comply with its fiduciary obligations to the Company’s Brainworks' stockholders under applicable Legal Requirements; law, (43) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, Brainworks gives the Company gives Parent LLC written notice of the identity of such Person and of the Company’s Brainworks' intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; , and (5) the Company Brainworks receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Brainworks and containing "standstill" provisions no less favorable to Brainworks than the "standstill" provisions contained that certain letter agreement dated July 2, 2002, between the LLC and Brainworks, and (4) at least as favorable two business days prior to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company Brainworks furnishes such nonpublic information to Parentthe LLC (to the extent such nonpublic information has not been previously furnished by Brainworks to the LLC). Without limiting the generality of the foregoing, Brainworks, the LLC and the Company acknowledges each acknowledge and agrees that, agree that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the event preceding sentence by any Representative of any of the Acquired Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case of the Company and the LLC), whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action thatsuch Entities, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 4.4 by Brainworks, the Company for purposes of this AgreementCompany, or the LLC, as applicable. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company Brainworks shall promptly (and in no event later than 48 24 hours after receipt of such any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or Acquisition Inquiryany request for nonpublic information) advise Parent the LLC and the Company orally and in writing of such any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or Acquisition Inquiry any request for nonpublic information relating to any of the Brainworks Corporations (including the identity of the Person making or submitting such Acquisition Proposal Proposal, inquiry, indication of interest or Acquisition Inquiryrequest, and the terms thereof)) that is made or submitted by any Person during the Pre-Closing Period. The Company Brainworks shall keep Parent the LLC and the Company fully informed with respect to the status and terms of any such Acquisition Proposal Proposal, inquiry, indication of interest or Acquisition Inquiry request and any modification or proposed modification thereto. (c) The Company Brainworks and the LLC shall immediately cease and cause to be terminated any existing discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition InquiryProposal. (d) The Company shall Each of Brainworks and the LLC agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of or right underof, any confidentiality, non-solicitation, no hire, “"standstill” " or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Brainworks Corporations (in the case of Brainworks) or the AAHoldings Entities (in the case to the LLC) is a party or under which any of the Acquired Corporations has any rightsparty, and shall will use its best efforts to enforce or cause to be enforced each such agreement to at the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality of Brainworks or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsLLC.

No Solicitation. (a) The Company shall will not, and will cause any officers, directors, employees and investment bankers, attorneys or other agents retained by the Company or any of its subsidiaries not to, (i) directly or indirectly dosolicit, initiate or knowingly encourage (including by way of furnishing non-public information), or take any other action knowingly to facilitate any inquiries or the making of any Acquisition Proposal (as hereinafter defined), or (ii) except as permitted below, engage in negotiations or discussions with, or furnish any information or data to any third party relating to, or that may reasonably be expected to lead to, an Acquisition Proposal (other than the transactions contemplated hereby). Notwithstanding anything to the contrary contained in this Section 6.4 or in any other provision of this Agreement, the Company, and shall ensure that no Representative of any of the Acquired Corporations directly its officers, directors, investment bankers, attorneys or indirectly doesagents, any of the followingmay: (i) solicitparticipate in discussions or negotiations (including, initiateas a part thereof, knowingly encourage, induce making any counterproposal) with or knowingly facilitate the making, submission or announcement of furnish information to any third party making an unsolicited Acquisition Proposal (a "Potential Acquiror") if: (A) the Company Board determines in good faith, after consultation with ABN-AMRO or another financial advisor of nationally recognized standing, that such third party is reasonably likely to submit an Acquisition Inquiry; Proposal which is a Superior Proposal (as hereinafter defined), and (B) the Company Board determines in good faith, based upon advice of outside legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information is reasonably likely to be inconsistent with the Company Board's fiduciary duties under applicable law, or (ii) furnish following receipt of an Acquisition Proposal, disclose to its shareholders the Company's position contemplated by Rules 14d-9 and 14e-2 under the Exchange Act or otherwise make any other necessary disclosure to its shareholders related to an Acquisition Proposal. The Company agrees that any non-public information regarding any furnished to a Potential Acquiror will be pursuant to a confidentiality agreement substantially similar to the confidentiality provisions of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend confidentiality agreement entered into between the Company and Acquiror. In the event that the Company shall receive any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained it shall promptly inform Acquiror in this Section 4.3(a), prior writing as to the adoption terms of such Acquisition Proposal, and approval of this Agreement by if the Required Stockholder Vote, Acquisition Proposal is in writing the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (shall provide the Acquiror a true and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Personcomplete copy thereof, and will keep Acquiror reasonably informed of the status (Bincluding amendments or proposed amendments) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) any such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of Proposal, except to the provisions set forth in this Section 4.3; (2) extent that the board of directors Company Board determines in good faith by majority votefaith, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s consultation with its outside legal counsel, that failure to take any such action would be with respect to a Superior Proposal that by its terms expressly prohibits any disclosure of the terms of such Superior Proposal and described in this sentence is reasonably likely to result in a breach of its be inconsistent with Company Board's fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementlaw. (b) If For purposes of this Agreement, "Acquisition Proposal" shall mean any Acquired Corporation bona fide proposal made by a third party to acquire (i) beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of a 15% or greater equity interest in the Company pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer or exchange offer or similar transaction involving the Company including, without limitation, any single or multi-step transaction or series of related transactions which is structured in good faith to permit such third party to acquire beneficial ownership of a 15% or greater equity interest in the Company or (ii) all or a substantial part of the business or assets or any Representative equity interest in, or voting securities of, of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later other than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereoftransactions contemplated by this Agreement). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company term "Superior Proposal" shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to mean any Acquisition Proposal which the Company Board, determines in good faith, after consultation with ABN-AMRO or Acquisition Inquiry. (d) The Company shall not release or permit the release another financial advisor of any Person fromnationally recognized standing, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished more favorable to such Person by or on behalf of any of party and its shareholders than the Acquired Corporationstransactions contemplated hereby.

No Solicitation. (a) The Company shall not, and shall cause each of the Company Subsidiaries and its and their respective officers, directors, employees, agents, investment bankers, financial advisors, attorneys, accountants and other retained representatives (each, a “Representative”) not to, directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourageencourage or facilitate (including by way of furnishing information), induce or knowingly facilitate take any other action designed to facilitate, any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, by way of a tender offer) or similar transactions involving the makingCompany or any of the Company Subsidiaries that, submission if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or announcement of proposals being referred to herein as an “Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding an Alternative Transaction or Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent agreement regarding any Alternative Transaction or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that, notwithstanding anything contained in the event that (x) the Company shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Section 4.3(a)Agreement, (y) prior to receipt of the adoption and approval of this Agreement by the Required Stockholder VoteCompany Shareholder Approval, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors Board determines in its good faith by majority votejudgment, after having considered receiving the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure that, in light of such Superior Proposal, if the Company fails to take participate in such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, or provide such Personinformation to, the party making the Superior Proposal, the Company gives Parent written notice Board would be in violation of its fiduciary duties under applicable Law, and (z) the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and Company has given HEOP at least five (5) Business Days’ notice of its intention to do so, the Company receives from may (A) furnish information with respect to it and the Company Subsidiaries to the party making such Person an executed Superior Proposal pursuant to a customary confidentiality agreement containing provisions at least as favorable terms no less restrictive to the Company as those party making the Superior Proposal than the terms contained in the Confidentiality Agreement; provided that a copy of all such written information is simultaneously provided to HEOP, and (6B) concurrently with furnishing any participate in discussions regarding such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this AgreementSuperior Proposal. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the The Company shall notify HEOP promptly (and but in no event later than 48 hours one Business Day) after receipt of such any Acquisition Proposal or any material modification of or material amendment to any Acquisition Inquiry) advise Parent Proposal, or any request for non-public information relating to the Company or any of the Company Subsidiaries or for access to the properties, books or records of the Company or any of the Company Subsidiaries by any Person that has made, or to the Company’s Knowledge may be considering making, an Acquisition Proposal. Such notice to HEOP shall be made orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including writing, and shall indicate the identity of the Person making or submitting such the Acquisition Proposal or intending to make or considering making an Acquisition InquiryProposal or requesting non-public information or access to the books and records of the Company or any of the Company Subsidiaries, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or modification or amendment to an Acquisition Inquiry Proposal. The Company shall keep HEOP fully informed, on a current basis, of any changes in the status and any modification changes or proposed modification theretomodifications in the terms of any such Acquisition Proposal, indication or request. (c) The Company and the Company Subsidiaries shall immediately cease and cause to be terminated any existing discussions prior or negotiations with any Persons (other than HEOP) conducted heretofore with respect to any of the foregoing. The Company agrees not to, and to cause the Company Subsidiaries not to, release any third party from, and agrees to enforce, the confidentiality and standstill provisions of any agreement to which the Company or the Company Subsidiaries is a party that remains in effect as of the date of this Agreement with hereof, and shall immediately take all steps necessary to terminate any Person approval that relate may have been heretofore given under any such provisions authorizing any person to any make an Acquisition Proposal or Acquisition InquiryProposal. (d) The Nothing contained in this Agreement shall prohibit the Company shall not release Board from disclosing to its shareholders a position contemplated by Rules 14d-9 and 14e-2(a)(2)-(3) under the Exchange Act; provided, that such Rules will in no way eliminate or permit modify the release of effect that any Person fromaction pursuant to such Rules would otherwise have under this Agreement; and provided, or waive or permit the waiver of further, that any provision of or right undersuch disclosure (other than a “stop, any confidentiality, non-solicitation, no hire, “standstilllook and listen” or similar agreement in connection with, relating to, or which could communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any be a modification of the Acquired Corporations is Company Board Recommendation in a party or under which any of manner adverse to HEOP unless the Acquired Corporations has any rights, Company Board expressly and shall enforce or cause to be enforced each such agreement to concurrently reaffirms the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsBoard Recommendation.

No Solicitation. (a) The Company Except with respect to this Agreement and the transactions contemplated hereby, no GSMS Entity or PSS Entity nor any Affiliate thereof nor any Representatives thereof retained by any GSMS Entity or any PSS Entity shall not directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiate, knowingly encourage, induce or knowingly facilitate the making, submission or announcement of solicit any Acquisition Proposal by any Person. Except to the extent the Board of Directors of GSMS or Acquisition Inquiry; (ii) PSS, as the case may be, after having consulted with and considered the advice of outside counsel, determines in good faith that the failure to take such actions would constitute a breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law, no GSMS Entity or PSS Entity, as the case may be, or any Affiliate or Representative thereof shall furnish any non-public information regarding any of the Acquired Corporations that it is not legally obligated to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person furnish, negotiate with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions any Contract with respect to, any Acquisition Proposal, but GSMS or conduct negotiations withPSS, such Person, in as the case of each of (A) and (B) if: (1) may be, may communicate information about such an Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel to its stockholders if and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior extent that it is required to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention do so in order to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least comply with its legal obligations as favorable advised by outside counsel. Any actions by a Party pursuant to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or preceding sentence will not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by 8.8 or any other provision hereof. Either Party shall promptly advise the Companyother following the receipt of any Acquisition Proposal and the details thereof, including, without limitation, the taking of proposed acquisition price and acquiror, and advise such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative other Party of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of developments with respect to such Acquisition Proposal or Acquisition Inquirypromptly upon the occurrence thereof. Each Party shall (i) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any existing activities, discussions prior to or as of the date of this Agreement negotiations with any Person that relate Persons conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which foregoing, and (ii) direct and use its reasonable efforts to cause all of its Affiliates and Representatives not to engage in any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsforegoing.

No Solicitation. (a) The Company TARGET shall not directly or indirectly donot, and nor shall ensure that no Representative of it permit --------------- any of the Acquired Corporations directly its Subsidiaries to, nor shall it authorize or indirectly doespermit any officer, director of employee of, or any investment banker, attorney or other advisor or representative of, TARGET or any of the following: its Subsidiaries to, (i) solicit, solicit or initiate, knowingly encourageor encourage the submission of, induce or knowingly facilitate the making, submission or announcement of any Acquisition Takeover Proposal or Acquisition Inquiry; (ii) furnish participate in any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with regarding, or furnish to any Person person any information with respect to, or take any other action to facilitate any Acquisition Proposal on Acquisition Inquiry; (iv) approveinquiries or the making of any proposal that constitutes, endorse or recommend may reasonably be expected to lead to, any Acquisition Takeover Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained subject to compliance with subsection (c) below and after receiving the written opinion of independent outside legal counsel to the effect that the failure to do so would constitute a breach by the TARGET Board of Directors of its fiduciary duties to TARGET shareholders under applicable law, TARGET may, in response to an unsolicited Takeover Proposal that (i) was not received in violation of this Section 4.3(a)7.8, prior (ii) is not subject to financing and (iii) the adoption and approval TARGET Board of this Agreement by Directors determines in good faith, after receipt of a written opinion of a financial advisor of nationally recognized reputation to such effect, would result in a transaction more favorable to TARGET shareholders than the Required Stockholder Vote, the Company mayMerger, (A) in response furnish information with respect to an Acquisition Inquiry that has been made by such TARGET to any Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations pursuant to such Person, a confidentiality agreement and (B) participate in response to an Acquisition Proposal that has been made by negotiations regarding such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to ParentTakeover Proposal. Without limiting the generality foregoing, it is understood that any violation of the foregoing, the Company acknowledges and agrees that, restrictions set forth in the event immediately preceding sentence by any Representative executive officer of TARGET or any of the Acquired Corporations (its Subsidiaries or any investment banker, attorney or other advisor or representative of TARGET or any of its Subsidiaries, whether or not such Representative person is purporting to act on behalf of TARGET or any of the Acquired Corporations) takes any action thatits Subsidiaries or otherwise, if taken by the Company, would constitute shall be deemed to be a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.7.8

No Solicitation. (a) The Each of Parent (except as it relates to the Concurrent Investment and any Parent Legacy Transaction) and the Company agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall not it or any of its Subsidiaries authorize any of its Representatives to, directly or indirectly do, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the followingindirectly: (i) solicit, initiate, initiate or knowingly encourage, induce or knowingly facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; , (ii) furnish any non-public nonpublic information regarding any of the Acquired Corporations such party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; , (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on or Acquisition Inquiry; , (iv) approve, endorse or recommend any Acquisition Proposal; or Proposal (subject to Section 7.2 and Section 7.3), (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction, (vi) take any action that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry or (vii) publicly propose to do any of the following; provided, however, that, notwithstanding anything contained in this Section 4.3(a)6.4 and subject to compliance with this Section 6.4, prior to obtaining the adoption and approval of this Agreement by the Required Parent Stockholder VoteApproval, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), Parent may furnish nonpublic information regarding the Acquired Corporations to such PersonParent and its Subsidiaries to, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, any Person in the case of each of (A) and (B) if: (1) such response to a bona fide written Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of by such Person which the provisions set forth in this Section 4.3; (2) the board of directors Parent Board determines in good faith by majority votefaith, after having considered the advice of the Company’s consultation with its financial advisors and outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer counsel, constitutes, or is reasonably likely to lead to result in, a Superior Offer; Offer (3and is not withdrawn) if: (A) such Acquisition Proposal was not obtained or made as a direct or indirect result of any breach of this Agreement, (B) the board of directors determines Parent Board concludes in good faith by majority votefaith, after having considered the advice of the Company’s consulting with outside legal counsel, that the failure to take such action would reasonably be reasonably likely expected to result in a breach of its be inconsistent with the Parent Board’s fiduciary obligations to the Company’s stockholders duties under applicable Legal Requirements; Law, (4C) at least two business days (2) Business Days prior to initially furnishing any such nonpublic information to, or entering enter into discussions or negotiations with, such Person, Parent provides the Company gives Parent written notice of the identity of such Person and of the CompanyParent’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and , (5D) the Company Parent receives from such Person an executed confidentiality agreement containing provisions Acceptable Confidentiality Agreement and (E) at least as favorable two (2) Business Days prior to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company Parent furnishes such nonpublic information to Parentthe Company (to the extent such information has not been previously furnished by Parent to the Company). Without limiting the generality of the foregoing, the Company each party acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) party takes any action that, if taken by the Companysuch party, would constitute a breach of this Section 4.3 6.4 by the Companysuch party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 6.4 by the Company such party for purposes of this Agreement. (b) If any Acquired Corporation party or any Representative of any Acquired Corporation such party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company such party shall promptly (and in no event later than 48 hours one (1) Business Day after receipt such party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Parent the other party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company Such party shall keep Parent fully the other party reasonably informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any material modification or material proposed modification thereto. (c) The Company Each party shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement existing discussions, negotiations and communications with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release Inquiry as of the date of this Agreement and request the destruction or permit the release return of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential nonpublic information heretofore furnished provided to such Person by or on behalf as soon as reasonably practicable after the date of any of the Acquired Corporationsthis Agreement.

No Solicitation. (a) The From the date hereof until the termination of this Agreement, the Company shall not directly or indirectly do, and shall ensure agrees that no Representative of neither it nor any of the Acquired Corporations officers or directors shall, and that it shall direct and use its best reasonable efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys and other agents not to, directly or indirectly doesindirectly, take any of the following: (i) action to solicit, initiate, knowingly encourage, induce encourage or knowingly facilitate the making, submission or announcement making of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection inquiry with respect thereto or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person person with respect thereto, or disclose any non-public information relating to the Company or afford access to the properties, books or records of the Company to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend person that has made any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything that nothing contained in this Section 4.3(a)6.14 shall prevent the Company, after providing prior notice thereof to the adoption and approval of this Agreement by the Required Stockholder VoteBuyer that it is taking such action, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic from furnishing non-public information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter entering into discussions or conduct negotiations with, such Person, any person in the case of each of (A) and (B) if: (1) such connection with an unsolicited bona fide Acquisition Proposal shall not have arisen directly or indirectly received from any breach of any of such person that the provisions set forth in this Section 4.3; (2) the board of directors Company Board determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; Proposal, so long as (3i) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations Company has received prior to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days date hereof an executed confidentiality agreement or prior to furnishing any such nonpublic non-public information to, or entering into discussions or negotiations with, such Personperson, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and (5) the Company receives from such Person person an executed confidentiality agreement containing provisions at least as favorable standard terms and conditions and (ii) the Company Board determines in good faith, based on such matters that it deems relevant, but in any event upon the advice of independent legal counsel, that such action is necessary for the Company Board to comply with its fiduciary duties to the Company as those Company's shareholders under applicable law; provided, further, that nothing contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, this Agreement shall prevent the Company furnishes such nonpublic information or its board of directors from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreementan Acquisition Proposal. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the The Company shall will (i) promptly (and in no event later than 48 hours after the receipt of any Acquisition Proposal) notify (which notice shall be provided in writing and shall identify the person making such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including set forth the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the material terms thereof). The Company shall keep Parent fully informed with respect to the status and terms ) Buyer after receipt of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The any request for nonpublic information relating to the Company shall not release or permit any of its Subsidiaries or for access to the release properties, books or records of the Company or any Person fromof its Subsidiaries by any person that may be considering making, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitatehas made, an Acquisition Proposal or Acquisition Transaction to which any Proposal, and (ii) keep Buyer informed on a current basis of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, status and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf content of any of the Acquired Corporations.discussions or negotiations with any third party regarding any Acquisition

No Solicitation. (a) The Each of Parent and the Company shall and their respective Subsidiaries will not, and will use their reasonable best efforts to cause their respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly doindirectly, and shall ensure that no Representative of take any of the Acquired Corporations directly or indirectly does, any of the following: (i) action to solicit, initiate, knowingly encourage, induce encourage or knowingly facilitate the making, submission or announcement making of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding any including without limitation, in the case of the Acquired Corporations to Company, by amending, or granting any Person in connection waiver under, the Company Rights Agreement) or any inquiry with respect thereto or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in substantive discussions or negotiations with any Person with respect to thereto, or in connection with any Acquisition Proposal on or potential Acquisition Inquiry; (iv) approveProposal, endorse disclose any nonpublic information relating to it or recommend its Subsidiaries or afford access to the properties, books or records of it or its Subsidiaries to, any Person that has made, or to such party's knowledge, is considering making, any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in the event that (x) Parent or the Company shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Section 4.3(a)7.10, (y) prior to receipt of the adoption and approval of this Agreement by the Required Parent Stockholder Vote, the Company may, Approval (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of Parent) or the Company Stockholder Approval (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any in the case of the provisions set forth in this Section 4.3; (2) Company), the board Board of directors Directors of either Parent or the Company, as applicable, determines in its good faith by majority votejudgment, after having considered receiving the advice of outside counsel that, in light of this Superior Proposal, if Parent or the Company’s outside legal counsel and the Financial Advisor that , as applicable, fails to participate in such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, or provide such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations withthe party making the Superior Proposal, there is a reasonable possibility that such Person; Board of Directors would be in violation of its fiduciary duties under applicable law, and (5z) after giving the Company receives from other party two business days' notice of its intention to do so, the party receiving such Superior Proposal may (i) furnish information with respect to it and its subsidiaries to the Person an executed making such Superior Proposal pursuant to a customary confidentiality agreement containing provisions at least as favorable to terms generally no less restrictive than the Company as those terms contained in the Confidentiality Agreement; Agreement (but not containing any exclusivity provision and permitting the Person to submit to the Board of Directors of the Company or Parent, as applicable, Acquisition Proposals with respect to the Company or Parent, as applicable, provided that any such Acquisition Proposal is subject to the approval of the Board of Directors of the Company or Parent, as applicable, (which approval may be granted solely in accordance with the terms of Sections 5.1(m) or 6.1(m) hereof)), provided that a copy of all such written information is simultaneously provided to the other party hereto and (6ii) concurrently with furnishing any participate in discussions and negotiations regarding such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this AgreementSuperior Proposal. (b) If any Acquired Corporation Nothing contained in this Agreement shall prevent the Board of Directors of Parent or any Representative the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of any Acquired Corporation receives Directors of that party shall not recommend that the stockholders of that party tender their shares in connection with a tender offer except to the extent, after receiving a Superior Proposal, the Board of Directors of that party determines in its good faith judgment, after receiving the advice of outside legal counsel, that, in light of the Superior Proposal, there is a reasonable possibility that the Board of Directors would be in violation of its fiduciary duties under applicable law if it fails to make such a recommendation. (c) Any party receiving an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall will (A) promptly (and in no event later than 48 hours after receipt of such any Acquisition Proposal or Acquisition InquiryProposal) advise Parent notify (which notice shall be provided orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of and shall identify the Person making or submitting such the Acquisition Proposal and set forth the material terms thereof) the other party to this Agreement after receipt of any Acquisition Proposal, or any request for nonpublic information relating to such party or any Subsidiary of such party or for access to the properties, books or records of such party or any Subsidiary of such party by any Person that has made, or to such party's knowledge may be considering making, an Acquisition InquiryProposal, and (B) will keep the terms thereof). The Company shall keep Parent fully other party to this Agreement reasonably informed with respect of any changes to the status and material terms of any such Acquisition Proposal or Acquisition Inquiry request. Each of Parent and any modification or proposed modification thereto. (c) The the Company shall, and shall cause their respective Subsidiaries to, immediately cease and cause to be terminated any terminated, and use reasonable best efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to or as of the date of this Agreement hereof with any Person that relate Persons with respect to any Acquisition Proposal or Acquisition InquiryProposal. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.

No Solicitation. (a) The Company shall not directly or indirectly donot, and shall ensure that no Representative of not authorize or permit any of the Acquired Corporations its officers, directors, employees or agents to directly or indirectly doesindirectly, solicit, encourage, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than the Merger Sub, any of its affiliates or representatives) (collectively, a "Person") concerning any merger, consolidation, tender offer, exchange offer, sale of all or substantially all of the Company's assets, sale of shares of capital stock or similar business combination transaction involving the Company or any principal operating or business unit of the Company or its subsidiaries (an "Acquisition Proposal"). Notwithstanding the foregoing, (i) if prior to the Merger Sub owning a majority of the outstanding Shares the Company receives an unsolicited, written indication of a willingness to make an Acquisition Proposal at a price per share which the Company reasonably concludes is in excess of the Merger Consideration from any Person and if the Company reasonably concludes in good faith, after consultation with its outside financial advisor, that the Person delivering such indication is capable of consummating such an Acquisition Proposal (based upon, among other things, the availability of financing and the capacity to obtain financing, the expectation of receipt of required antitrust and other regulatory approvals and the identity and background of such Person), then the Company may provide access to or furnish or cause to be furnished information concerning the Company's business, properties or assets to any such Person pursuant to an appropriate confidentiality agreement and the Company may engage in discussions related thereto, and (ii) the Company may participate in and engage in discussions and negotiations with any Person meeting the requirement set forth in clause (i) above in response to a written Acquisition Proposal if the Company concludes in good faith, after consultation with its outside financial advisor, upon advice of its legal counsel, that the failure to engage in such discussions or negotiations is inconsistent with such Board's fiduciary duties to the Company's stockholders under applicable laws and the Company receives from the Person making an Acquisition Proposal an executed confidentiality agreement the terms of which are (without regard to the terms of the Acquisition Proposal) (A) no less favorable to the Company, and (B) no less restrictive to the Person making the Acquisition Proposal, than those contained in the Confidentiality Agreement. In the event that, after the Company has received a written Acquisition Proposal (without breaching its obligations under clause (i) or (ii) above) but prior to the Merger Sub beneficially owning a majority of the outstanding Shares, the Board of Directors concludes in good faith, after consultation with its outside financial advisor, upon advice of its legal counsel, that it is inconsistent with such Board's fiduciary duties under applicable law not to do so, the Company may concurrently with the payment of the Fee provided in Section 6.4 do any or all of the following: (ix) solicitwithdraw or modify the Board of Directors' or recommendation of the Merger or this Agreement, initiate(y) approve or recommend an Acquisition Proposal, knowingly encouragesubject to this Section 6.6 and (z) terminate this Agreement. Furthermore, induce nothing contained in this Section 6.6 shall prohibit the Company or knowingly facilitate its Board of Directors from taking and disclosing to the makingCompany's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such disclosure to the Company's stockholders or otherwise which, submission in the judgment of the Board of Directors upon advice of legal counsel, is required under applicable law or announcement rules of any stock exchange. The Company shall promptly (but in any event within two days) advise the Purchaser in writing of any Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information inquiry regarding any the making of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with including any Person with respect to any request for information, the material terms and conditions of such request, Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption inquiry and approval of this Agreement by the Required Stockholder Vote, the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of the Person making such Person request, Acquisition Proposal or inquiry and thereafter shall keep the Purchaser reasonably informed, on a current basis, of the Company’s status and material terms of such proposals and the status of such negotiations or discussions, providing copies to the Purchaser of any Acquisition Proposals made in writing. The Company shall provide the Purchaser with one business day advance notice of, in each and every case, its intention to furnish nonpublic provide any information to, or enter into discussions or negotiations any confidentiality agreement with, any person or entity making any such Person; inquiry or proposal and (5) the Company receives from shall provide the Purchaser with three business days advance notice of, in each and every case, its intention to enter into any other agreement with any person or entity making any such Person an executed inquiry or proposal. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement containing provisions at least as favorable to which the Company as those contained in the Confidentiality Agreement; is a party and (6) concurrently with furnishing will use its best efforts to enforce any such nonpublic information to such Person, agreements at the Company furnishes such nonpublic information to Parent. Without limiting the generality request of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by Purchaser. The Company will inform the Company, would constitute a breach individuals or entities referred to in the first sentence of this Section 4.3 by 6.6 of the Company, the taking of such action by such Representative shall be deemed to constitute a breach of obligations undertaken in this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)6.6. The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal also will promptly request each person or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall immediately cease and cause to be terminated any discussions entity which has executed, within 12 months prior to or as of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person fromAgreement, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment acquiring the Company to return to the Acquired Corporations or destroy all confidential information heretofore furnished to such Person person or entity by or on behalf of the Company. Notwithstanding anything contained in this Agreement to the contrary, any action by the Company's Board of Directors permitted by, and taken in accordance with, this Section 6.6 shall not constitute a breach of this Agreement. Notwithstanding the provisions of the Acquired CorporationsConfidentiality Agreement, (i) following any notification to the Purchaser of a written proposal that permits the Company to negotiate with or furnish information to any third party in accordance with Section 6.6, and until any transaction resulting from such proposal shall have either been consummated or the Company shall have received written notification that any such third party shall no longer seek to engage in such transaction with or involving the Company, the Purchaser shall be entitled to propose or present to the Company any offer in response to such third party's offer, and (ii) if, from the date hereof until the Effective Time, any third party shall announce its intention to commence, or shall commence, any tender offer to acquire Shares, the Purchaser and the Merger Sub shall be entitled to make any public announcement or proposal, or to take any other action it or they may deem appropriate, in response to such announcement or tender offer and which is consistent with their obligations under this Agreement.

No Solicitation. (a) The Company From the date of this Agreement through the Effective Time, LSBG shall not not, nor shall it authorize or permit any of its Subsidiaries or their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectly dothrough another Person, and shall ensure that no Representative of any of the Acquired Corporations directly or indirectly does, any of the following: (i) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), knowingly encourageor take any other action designed to facilitate or that is likely to result in, induce any inquiries or knowingly facilitate the makingmaking of any proposal that constitutes, submission or announcement of is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or Acquisition Inquiry; furnish, or otherwise afford access, to any Person (iiother than BHB) furnish any non-public information regarding or data with respect to LSBG or any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating LSBG Subsidiaries or otherwise relating to an Acquisition Proposal, or (iv) make or authorize any statement or recommendation in support of any Acquisition Transaction; providedProposal. Notwithstanding the foregoing sentence, however, that, notwithstanding anything contained LSBG may take any of the actions described in this Section 4.3(a), prior to clause (iii) of the adoption and approval of this Agreement by the Required Stockholder Vote, the Company mayforegoing sentence only if, (A) in response LSBG has received a bona fide unsolicited written Acquisition Proposal prior to an Acquisition Inquiry the LSBG Meeting that has been made by such Person (and did not withdrawn)result from a breach of this Section 5.11, furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case LSBG Board of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors Directors determines in good faith by majority votefaith, after consultation with and having considered the advice of the Company’s its outside legal counsel and the Financial Advisor its financial advisor, that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; Proposal, (C) LSBG provides BHB with at least three (3) Business Day’s prior notice of such determination (the board “Notice of directors determines Superior Proposal”), which notice shall include the name of such Person and the material terms and conditions of any such Acquisition Proposal, and (D) prior to furnishing or affording access to any information or data with respect to LSBG or otherwise relating to an Acquisition Proposal, LSBG receives from such Person a confidentiality agreement with terms no less favorable to LSBG than those contained in the Confidentiality Agreement between BHB and LSBG. LSBG shall promptly provide to BHB any non-public information regarding LSBG and its Subsidiaries provided to any other Person that was not previously provided to BHB, such additional information to be provided no later than the date of provision of such information to such other party. (b) Notwithstanding Section 5.04, prior to the date of the LSBG Meeting, the LSBG Board may approve or recommend to the stockholders of LSBG a Superior Proposal and withdraw, change, qualify or modify the LSBG Recommendation in connection therewith (a “Change in Recommendation”) after the fifth (5th) Business Day following BHB’s receipt of the Notice of Superior Proposal advising BHB that the LSBG Board has decided that a bona fide unsolicited written Acquisition Proposal that it received (that did not result from a breach of this Section 5.11) constitutes a Superior Proposal (it being understood that LSBG shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that LSBG proposes to accept and the subsequent notice period (which shall not shorten such original five (5) Business Day period) shall be two (2) Business Days) if, but only if, (a) the LSBG Board has reasonably determined in good faith by majority votefaith, after consultation with and having considered the advice of the Company’s outside legal counselcounsel and its financial advisor, that the failure to take such action actions would be reasonably likely to result in a breach of violate its fiduciary obligations duties to the CompanyLSBG’s stockholders under applicable Legal Requirements; law, and (4b) at least two business days prior to furnishing any (i) during such nonpublic information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person; and five (5) Business Day period or two (2) Business Day Period (as the Company receives from case may be), LSBG has negotiated, and has used its reasonable best efforts to cause its financial and legal advisors to negotiate, with BHB in good faith to make such Person an executed confidentiality agreement containing provisions adjustments, modifications or amendments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) at least the end of such five (5) Business Day period or two (2) Business Day period (as favorable the case may be), after taking into account any such adjusted, modified or amended terms as may have been committed to in writing by BHB since its receipt of such Notice of Superior Proposal (provided, however, that BHB shall not have any obligation to propose any adjustments, modifications or amendments to the Company as those contained terms and conditions of this Agreement), the LSBG Board has again in good faith made the Confidentiality Agreement; determination (x) in clause (a) of this Section 5.11, and (6y) concurrently with furnishing any that such nonpublic information to such Person, the Company furnishes such nonpublic information to ParentAcquisition Proposal constitutes a Superior Proposal. Without limiting the generality of Notwithstanding the foregoing, the Company acknowledges and agrees thatwithdrawal, in the event any Representative of any changing, qualifying or modifying of the Acquired Corporations (whether LSBG Recommendation or the making of a Change in Recommendation by the LSBG Board shall not such Representative is purporting to act on behalf of any change the approval of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company LSBG Board for purposes of causing any applicable “moratorium,” “control share,” “fair price,” “takeover,” “interested stockholder” or similar law to be inapplicable to this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during Agreement and the Pre-Closing PeriodLSBG Voting Agreements and the transactions contemplated hereby and thereby, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification theretoMerger. (c) The Company LSBG shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than BHB) conducted heretofore with respect to any of the foregoing, and shall use reasonable best efforts to cause all Persons other than BHB who have been furnished confidential information regarding LSBG in connection with the solicitation of or discussions regarding an Acquisition Proposal within the twelve (12) months prior to the date hereof promptly to return or as destroy such information. LSBG agrees not to release any third party from the confidentiality and standstill provisions of any agreement to which LSBG is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person (other than BHB) to make an Acquisition Proposal. LSBG shall ensure that the directors, officers, employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or other retained representatives) of LSBG are aware of the date restrictions described in this Section 5.11 as reasonably necessary to avoid violations thereof. It is understood that any violation of the restrictions set forth in this Agreement Section 5.11 by any director, officer, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of LSBG, at the direction or with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company the consent of LSBG, shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any be a breach of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, and shall enforce or cause to be enforced each such agreement to the extent requested this Section 5.11 by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired CorporationsLSBG.

No Solicitation. (a) The From the date hereof until the termination of this Agreement, the Company and its Subsidiaries shall not (whether directly or indirectly dothrough advisors, agents or other intermediaries), and the Company shall use its reasonable efforts to ensure that no Representative of any the respective officers, directors, employees, advisors, representatives or other agents of the Acquired Corporations Company or its Subsidiaries will not, directly or indirectly doesindirectly, any of the following: (ia) solicit, initiate, encourage or take any other action to knowingly encouragefacilitate, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; (iib) furnish engage or participate in negotiations or substantive discussions with, or disclose any non-public information regarding any relating to the Company or its Subsidiaries or afford access to the properties, books or records of the Acquired Corporations to Company or its Subsidiaries to, any Person that has made, or has indicated its interest in connection with making or in response considering or intending to make, an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding anything contained in this Section 4.3(a), prior to the adoption and approval extent the Board of this Agreement by the Required Stockholder Vote, Directors of the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions or conduct negotiations with, such Person, in the case of each of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines in good faith by majority votefaith, after having considered the advice of the Company’s outside legal counsel and the Financial Advisor that such Acquisition Proposal constitutes a Superior Offer or is reasonably likely to lead to a Superior Offer; (3) the board of directors determines in good faith by majority vote, after having considered the advice of the Company’s consultation with outside legal counsel, that the failure to take engage or participate in such action negotiations or discussions or provide such information or afford such access would be reasonably likely to result in a breach be inconsistent with the fiduciary duties of its fiduciary obligations to the Company’s stockholders Board of Directors of the Company under applicable Legal Requirements; (4) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Personlaw, the Company gives Parent written notice of the identity of may furnish information and afford access to any such Person with respect to the Company and of the Company’s intention to furnish nonpublic information to, or its Subsidiaries and participate in negotiations and enter into discussions or negotiations withagreements with any such Person regarding such Acquisition Proposal; provided, such Person; and (5) if the Board of Directors of the Company receives from such Person an executed confidentiality agreement containing provisions at least as favorable Acquisition Proposal, then, subject to the Company as those contained in the Confidentiality Agreement; and (6) concurrently with furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent. Without limiting the generality fiduciary duties of the foregoing, the Company acknowledges and agrees that, in the event any Representative Board of any Directors of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes of this Agreement. (b) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall promptly (inform Parent of the terms and in no event later than 48 hours after receipt conditions of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally proposal and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof)it. The Company shall keep Parent fully informed with respect to the status and terms of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto. (c) The Company shall will immediately cease and cause to be terminated any existing activities, discussions prior or negotiations with any other Person that have been conducted heretofore with respect to a potential Acquisition Proposal. Furthermore, nothing contained in this Section 5.11 shall prohibit the Company or as the Board of Directors of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. (d) The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any of the Acquired Corporations is a party or under which any of the Acquired Corporations has any rights, from taking and shall enforce or cause to be enforced each such agreement disclosing to the extent requested Company's stockholders a position with respect to a tender or exchange offer by Parent. The Company shall promptly request each Person that has executed a confidentiality third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return from making such disclosure to the Acquired Corporations all confidential information heretofore furnished to such Person Company's stockholders as may be required by or on behalf of any of the Acquired Corporationsapplicable law.

No Solicitation. (a) The Company shall not directly or indirectly donot, shall ensure that its subsidiaries do not, and shall ensure that no Representative of not authorize or permit any of the Acquired Corporations officers, directors, employees, and other agents and representatives, of Company and its subsidiaries to, directly or indirectly doesindirectly, any of the following: (i) take any action to solicit, initiate, knowingly encourage, induce facilitate or knowingly facilitate encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry; Takeover Proposal, (ii) furnish engage in negotiations or discussions regarding, or disclose any non-public nonpublic information regarding relating to Company or any of its subsidiaries or afford access to the Acquired Corporations properties, books or records of Company or any of its subsidiaries with respect to, any inquiry or proposal that constitutes or would reasonably be expected to any Person in connection with lead to a Takeover Proposal, or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal on Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal; or (v) execute or enter into any letter of intent or similar document or any Contract (other than confidentiality agreements contemplated by this Section 4.3) contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, notwithstanding Takeover Proposal. (b) Notwithstanding anything contained to the contrary in this Section 4.3(a)Agreement, prior to the adoption and approval of this Agreement by the Required Stockholder VoteCompany Stockholders Meeting, if the Company may, (A) in response to an Acquisition Inquiry that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations to such Person, and (B) in response to an Acquisition Proposal that has been made by such Person (and not withdrawn), furnish nonpublic information regarding the Acquired Corporations toreceives a bona fide written Takeover Proposal, or enter into discussions or conduct negotiations with, such Person, in a bona fide written expression of interest that could reasonably be expected to lead to a Takeover Proposal and the case Board of each Directors of (A) and (B) if: (1) such Acquisition Proposal shall not have arisen directly or indirectly from any breach of any of the provisions set forth in this Section 4.3; (2) the board of directors determines Company in good faith by majority vote, (i) determines (after having considered the advice of the Company’s outside legal counsel and the Financial Advisor consultation with its financial advisors) that such Acquisition Takeover Proposal (or written expression of interest) constitutes a Superior Offer or is could reasonably likely be expected to lead to a Superior OfferProposal, and (ii) determines (after consultation with its outside legal counsel) that the failure to take such action with respect to such Takeover Proposal would be a breach of its fiduciary duties to the stockholders of the Company under applicable law, then Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives may take any of the actions otherwise prohibited by the terms of Section 4.3(a)(ii); provided, that Company first (3A) notifies Parent in writing of such determination by the board Company Board of directors determines Directors, (B) provides Parent with a true and complete copy of such Takeover Proposal (or written expression of interest), (C) provides Parent with all information provided to such third party, written or oral, including but not limited to all documents containing or referring to information of Company that are supplied to such third party, and (D) provides any such non public information pursuant to a non-disclosure agreement at least as restrictive with respect to matters of confidentiality of information as the Confidentiality Agreement. (c) Notwithstanding anything to the contrary in good faith by majority votethis Agreement, after having considered Company’s Board of Directors shall continue to recommend the advice of Merger, and may not recommend any Takeover Proposal, unless and until such time as (i) the Company’s Board of Directors determines that it has received a Superior Proposal, and (ii) the Board of Directors determines in connection with receipt of such Superior Proposal, after consultation with outside legal counsel, that failure continuing to take make such action recommendation with respect to the Merger, failing to change or withdraw such recommendation with respect to the Merger, or failing to recommend such Superior Proposal, would be reasonably likely to result in a breach of its fiduciary obligations duties to the stockholders of the Company under applicable law, at which time the Company’s stockholders under applicable Legal RequirementsBoard of Directors may change or withdraw its recommendation with respect to the Merger or recommend such Superior Proposal; provided, that, before and as a condition to taking any such action, (4i) Company first notifies Parent, in writing and at least two business days prior 72 hours before doing so, of this intention to furnishing any take such nonpublic information toaction, or entering into discussions or negotiations with, such Person, and (ii) Company attaches the Company gives Parent written notice of the identity most current version of such Person Superior Proposal (or a description of all material terms and of the Company’s intention to furnish nonpublic information toconditions thereof), or enter into discussions or negotiations with, such Person; and (5iii) Parent fails to make, within 72 hours of receipt of such written notification, an offer that the Board of Directors of Company receives from such Person an executed confidentiality agreement containing provisions determines, in good faith after consultation with its financial advisors, is at least as favorable to the stockholders of Company from a financial point of view as those contained such Superior Proposal. Company shall make its senior executives available for discussions with Parent and otherwise shall negotiate in good faith with Parent with respect to the Confidentiality Agreement; terms and conditions of this Agreement and the Merger during such 72-hour period. (6d) concurrently with furnishing any such nonpublic information Notwithstanding anything herein to such Personthe contrary, Company shall in all events call, give notice of, convene and hold the Company furnishes such nonpublic information Stockholders Meeting and allow Company stockholders to Parentvote on the Merger and transactions contemplated hereby, unless Parent shall have terminated this Agreement pursuant to Section 7.1(a)(iii) and Company shall have paid to Parent all amounts payable to Parent pursuant to Section 7.3(b). Without limiting Company shall not submit to the generality vote of the foregoingits stockholders any Takeover Proposal, the Company acknowledges and agrees thator propose to do so, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting prior to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company for purposes termination of this Agreement. (be) If any Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then the Company shall (i) promptly (and notify Parent after receipt, but in no event later than 48 24 hours after receipt from such receipt, of any Takeover Proposal (or any notice from any Person that such Acquisition Proposal Person is considering making a Takeover Proposal), or Acquisition Inquiryany request for non-public information relating to Company or any of its subsidiaries or for access to the properties, books or records of Company or any of its subsidiaries, by any Person that has advised Company that it may be considering making, or that has made, a Takeover Proposal; (ii) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to of the status and terms details of any such Acquisition Takeover Proposal notice or Acquisition Inquiry request in all material respects; and any modification (iii) provide Parent with a true and complete copy of such Takeover Proposal notice or proposed modification theretorequest, if it is in writing, or an oral summary thereof, if it is not in writing. (cf) The Nothing in this Agreement shall prohibit the Company shall immediately cease from taking and cause disclosing to its stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 under the Exchange Act, or from making any statement or other disclosure if the Company’s Board of Directors determines in good faith (after consultation with its outside legal counsel) that the failure to make such statement or other disclosure would be terminated any discussions prior a breach of its fiduciary duties to or as the stockholders of the date of this Agreement with any Person that relate to any Acquisition Proposal or Acquisition InquiryCompany under applicable law. (dg) The For purposes of this Agreement, “Takeover Proposal” means any offer or tender offer or proposal for, or any indication of interest in (whether written or oral), (i) a merger or other business combination involving the Company shall not release or permit any of its subsidiaries, (ii) the release acquisition of any Person fromsignificant equity interest (15% or more) in the Company or any of its subsidiaries, or waive (iii) the acquisition of a significant portion (15% or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement in connection with, relating to, or which could be deemed to relate to or facilitate, an Acquisition Proposal or Acquisition Transaction to which any more on a consolidated basis) of the Acquired Corporations is a party or under which any assets of the Acquired Corporations has any rightsCompany and its subsidiaries, and shall enforce or cause to be enforced in each such agreement to case other than the extent requested transactions contemplated by Parent. The Company shall promptly request each Person that has executed a confidentiality or similar agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return to the Acquired Corporations all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporationsthis Agreement.