Common use of Other Offers Clause in Contracts

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (Ai) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (Ciii) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such iv) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to MergerSub of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in furnish to any way withThird Party any information with respect to its business, properties or knowingly assist assets or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, foregoing or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoMergerSub) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offerParty who has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 5.02 and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (ui) through (z), iv) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law; provided, further, that (A) the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after giving reasonable notice to MergerSub with respect to its intent to take such action and (B) if the Board of Directors of the Company receives an Acquisition Proposal, to the extent it may do so without breaching its fiduciary duties as advised by counsel and as determined in good faith and without violating any of the conditions of such Acquisition Proposal, then the Company shall promptly inform MergerSub of the terms and conditions of such proposal and the identity of the person making it. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. As used in this Agreement, the term "Third Party" means any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than MergerSub or any of its affiliates.

Other Offers. (a) The Company shall not not, nor shall it authorize or permit any of its Subsidiaries to (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives or advisors to to, (ix) solicit, initiate initiate, encourage or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity Person or group, other than Mergerco Sub and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 2520% or more of the assets, Assets (other than purchases and sales or leases of inventory and rental equipment in the ordinary course of business consistent with past practice) or of over 2520% of any class of Equity Securities of, of (A) the Company or (B) any of the Company's Subsidiaries whose Assets constitute more than 20% of the Assets (a "SIGNIFICANT SUBSIDIARY" (it being understood and agreed that in any event Xxxxxx Corporation shall be deemed to be a Significant Subsidiary)), (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Person beneficially owning 2520% or more of any class of Equity Securities of the CompanyCompany or any of its Significant Subsidiaries, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries other than the transactions contemplated by this Agreement (each such transaction being referred to herein as an "Acquisition ProposalACQUISITION PROPOSAL"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, foregoing or (iiiz) grant any material waiver or release under any standstill standstill, non-solicitation or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director Company or the Board (acting through the Independent Director) its Subsidiaries (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity Person or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Sub or any of its Affiliates (a "Third PartyTHIRD PARTY") in response to any unsolicited inquiry, proposal or offerwho has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal and/or (excluding Acquisition Proposals (1iii) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director taking any non-appealable, final action ordered to be obtained taken by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point or its Subsidiaries by any court of view)competent jurisdiction, (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ui) through and (zii), only to the extent that, in response to a bona fide Acquisition Proposal that the Independent Director Board of Directors of the Company shall have determined in good faith is reasonably likely to result in a Superior Proposal (as defined in SECTION 8.1(A)(VI), the Board of Directors of the Company shall have concluded in good faith upon the advice of legal after consultation with outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders shareholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) and (ii) until after the Company has given Sub notice thereof as contemplated by SECTION 6.4(D). Notwithstanding the foregoing, if, prior to the Shareholder Vote, the Board of Directors of the Company receives a bona fide Acquisition Proposal and as a result thereof the Board of Directors determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with their fiduciary obligations, the Board of Directors of the Company may withdraw or modify its approval or recommendation of the Merger and this Agreement. The Company shall immediately cease and cause order its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing; PROVIDED that the Company shall be responsible for any such advisor, agent or other intermediary failing to cease such activities, discussions and negotiations. Nothing contained in this SECTION 6.4 shall prohibit the Company from taking or disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or from making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with outside counsel, failure to so disclose would be in violation of its obligations under Applicable Law.

Other Offers. (a) The Company shall not (whether directly or indirectly through advisorsFrom the date hereof until the termination of this Agreement, agents or other intermediaries)Expert and the Expert Subsidiaries will not, nor shall the Company authorize or permit any of its or its and will use their best efforts to cause their officers, directors, agentsemployees, controlling stockholders, agents or representatives (including, without limitation, any investment banker, attorney or advisors to accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or take any action knowingly to solicit, initiate, encourage or facilitate any inquiries or the submission making or implementation of inquiriesany proposal or offer (including, proposals without limitation, any proposal or offers from any corporationoffer to its stockholders) with respect to a merger, partnershipacquisition, person consolidation or other entity or group, other than Mergerco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assetssimilar transaction involving, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale purchase of all or substantially all any significant portion of the assetsassets or any equity securities of, liquidation, dissolution Expert or similar transaction involving any of the Company Expert Subsidiaries (each any such transaction proposal or offer being hereinafter referred to herein as an "Acquisition Proposal")) or (ii) engage in any negotiations concerning, or agree provide any confidential information or data to, or have any discussions with, any person relating to or endorse any an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable lawimplement an Acquisition Proposal. The Company shall immediately Expert will promptly cease and cause its advisors, agents and other intermediaries to cease be terminated any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoingforegoing and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 6.9. Expert will notify Activision promptly if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 6.9 shall prohibit the Board of Directors of Expert from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal to acquire Expert pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets or stock, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of Expert determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law as advised by outside legal counsel to Expert, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Expert provides written notice to Activision to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which the Board of Directors of Expert determined in good faith was required to be executed in order for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law as advised by outside legal counsel to Expert), Expert keeps Activision informed of the status (not the terms) of any such discussions or negotiations; and (ii) to the extent applicable, complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Board of Directors of Expert shall be permitted from time to time to take the following actions in the circumstances described below: (i) to withdraw or modify in a material and negative respect its approval or recommendation of this Agreement or the Merger in a manner adverse to Activision or (ii) to approve or recommend or enter into an agreement with respect to an Acquisition Proposal if, in each such case, (x) an Acquisition Proposal is publicly proposed, publicly disclosed or communicated to Expert and (y) the Board of Directors of Expert determines in good faith, based on the advice of its outside legal counsel, that such action is required in order to comply with its fiduciary duties to the stockholders of Expert. No action by the Board of Directors of Expert permitted by the preceding sentence (each, a "Permitted Action") shall constitute a breach of this Agreement by Expert, provided that such Permitted Action shall give rise to the rights of Activision set forth in Section 8.3. hereof.

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Mergeco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the CompanyCompany or the Subsidiary, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Mergeco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director Special Committee or the Board (acting through the Independent DirectorSpecial Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoMergeco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Mergeco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (x) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 4.7 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ux) through (z), only to the extent that the Independent Director Special Committee shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent DirectorSpecial Committee's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Acquirer and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 2535% or more of the assets, or of over 2535% of any class of Equity Securities of, the CompanyCompany and its Subsidiaries, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 2535% or more of any class of Equity Securities of the CompanyCompany or any of its Subsidiaries, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 35% of the assets other than the transactions contemplated by this Agreement (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Acquirer, a member of the Cxxx Xxxxx Group and its their respective representatives and Affiliates) to do or seek any of the foregoing, or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoAcquirer) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Acquirer or any of its Affiliates (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (wii) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 4.25 hereof and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (ui) through (ziv), only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law; provided, further, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after giving reasonable notice to Acquirer with respect to its intent to take such action. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. The Company and its Subsidiaries hereby represent that they are not now engaged in discussions or negotiations with any party other than Acquirer and its Affiliates with respect to any proposed Acquisition Proposal.

Other Offers. (a) The No Company shall not (whether directly or indirectly through advisors, agents or other intermediaries)Entity shall, nor shall the Company it authorize or permit any of its Affiliates or its officersRepresentatives to, directors, agents, representatives directly or advisors to indirectly (i) solicit, initiate initiate, encourage or take any action knowingly to facilitate induce the making, submission or announcement of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoingregarding, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect furnish to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity Person or "group,Group" (as such term is defined in Section 13(d) of under the Exchange Act) any nonpublic information with respect to, or take any other than Mergerco action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal, or (iv) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction. Notwithstanding the foregoing, this Section 9.2(a) shall not prohibit a "Third Party") Company Entity from furnishing nonpublic information regarding any Company Entity to, or entering into a confidentiality agreement or discussions or negotiations with, any Person or Group in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (excluding Acquisition Proposals (1and not withdrawn) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment if all of the Independent Director to be obtained by such Third Party on a timely basis following conditions are met: (A) no Company Entity or Representative or Affiliate thereof shall have solicited, initiated, encouraged or induced the making, submission or announcement of any Acquisition Proposal, (2B) the Special Committee determines in its good faith judgment (based on, among other things, the advice of the Special Committee Financial Advisor or any other financial advisor of nationally recognized reputation) that are not on terms such Acquisition Proposal constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, (C) the Independent Director or the BoardSpecial Committee concludes in good faith, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of outside legal counsel, that the proposal and the Third Party making the proposal and any proposed changes failure to this Agreement that may take such action would be proposed by Mergerco in response to inconsistent with its fiduciary duties, as such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to duties would exist in the foregoing clauses (u) through (z)absence of this Section 9.2, only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders shareholders of the Company under applicable law. The Company shall immediately cease and cause its advisorsLaw, agents and other intermediaries (D) (1) prior to cease furnishing any and all existing activitiessuch nonpublic information to, or entering into discussions or negotiations with any parties conducted prior with, such Person or Group, the Company gives Purchaser written notice of the identity of such Person or Group and of the Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group, and (2) the Company receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the date hereof with respect to any disclosing party than the terms of the foregoingConfidentiality Agreement and (E) contemporaneously with furnishing any such nonpublic information to such Person or Group, the Company furnishes such nonpublic information to Purchaser (to the extent such nonpublic information has not been previously furnished by the Company to Purchaser).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity Person or group, other than Mergerco Parent and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 25% or more a material portion of the assets, assets or of over 25% of any class of Equity Securities of, of the Company, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Person beneficially owning 25% or more of any class of Equity Securities of the Company, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute a material portion of the Assets other than the transactions contemplated by this Agreement or (iv) any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which could reasonably be expected to materially dilute the benefits to Parent of the transactions contemplated hereby (each such transaction being referred to herein as an "Acquisition ProposalACQUISITION PROPOSAL"), or agree to or endorse any Acquisition Proposal, (iiy) continue, enter into or participate in in, any discussions or negotiations regarding with, furnish any of the foregoinginformation to any Person (other than Parent and its representatives and Affiliates) in connection with, or otherwise cooperate in knowingly take any way with, or knowingly assist or participate in, other action to facilitate or encourage, encourage any effort or attempt by by, any other person Person (other than Mergerco Parent and its representatives and Affiliates) to do or seek any of the foregoingmake, or an Acquisition Proposal or, (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) ), prior to a shareholder vote at the Special Meeting, in connection with the Merger from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Letter, and a copy of which shall be provided for informational purposes only to MergercoParent) concerning the Company and its businesses, properties or Assets to any personPerson or group, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third PartyTHIRD PARTY") in response to any unsolicited inquiry, proposal or offerwho has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (xiii) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, or (yiv) following receipt taking any non-appealable, final action ordered to be taken by the Company by any court of a bona fide Acquisition Proposalcompetent jurisdiction, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ui) through (ziii), only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith faith, upon the advice recommendation of legal counsel the Special Committee of the Board of Directors of the Company (the "SPECIAL COMMITTEE"), that such action Acquisition Proposal, if accepted, is consistent with reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the Independent Director's (proposal and the Board's) fiduciary duties Person or entity making the proposal and would, if consummated, result in a transaction that is more favorable to the stockholders of the Company under applicable law(other than the C&E Shareholders) than the transaction contemplated by this Agreement; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iii) until after giving 72 hours' notice to Parent with respect to its intent to take such action and informing Parent of the terms and conditions of such proposal and the identity of the Person making it and providing Parent with a copy of any such proposal in writing. The Company shall immediately cease shall, at all times, promptly inform Parent of the status and cause its advisors, agents and other intermediaries to cease terms of any and all existing activities, discussions or negotiations regarding any Acquisition Proposal with any parties conducted prior to the date hereof with respect to any of the foregoingother Person.

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Mergeco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the CompanyCompany or the Subsidiary, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Mergeco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director Special Committee or the Board (acting through the Independent DirectorSpecial Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoMergeco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Mergeco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (x) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 4.11 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ux) through (z), only to the extent that the Independent Director Special Committee shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent DirectorSpecial Committee's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing.