Common use of Takeover Proposal Clause in Contracts

Takeover Proposal. Except as permitted by this Section 5.04, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and cause the Company’s Subsidiaries and the Company’s and the Company’s Subsidiaries’ respective Representatives not to: (i) directly or indirectly, solicit, initiate, or knowingly facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) continue, conduct, or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s Subsidiaries to any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, and shall cause the Company’s Subsidiaries and the Company’s and the Company’s Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04Neither the Company, during on the period from one hand, nor Parent, on the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its termsother hand, the Company shall notshall, and each shall direct and cause the Company’s their respective Subsidiaries and the Company’s and the Company’s their or their respective Subsidiaries’ respective Representatives directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to: (i) , directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or, subject to Section 5.04(b): (iii) continue, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or Parent or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or Parent or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iiiii) (A) except where the Special Committee Company Board or Parent Board, as applicable, makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would reasonably be expected to cause the Company Board it to be in breach of/be inconsistent with the Company’s Board’s of its fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or Parent, as applicable, or any of its their respective Subsidiaries; , or (ivB) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (viii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a an “Company Acquisition Agreement”); or (vi) approve. Except as expressly permitted by this Section 5.04, authorizeneither the Company Board shall effect a Company Adverse Recommendation Change, agree, or publicly announce any intention to do any of nor shall the foregoingParent Board effect a Parent Adverse Recommendation Change. The Company on the one hand, and Parent, on the other hand, shall, and shall cause the Company’s their respective Subsidiaries and the Company’s their and the Company’s their Subsidiaries’ Representatives (if any) to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its commercially reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or Parent, as applicable, and any of its their respective Subsidiaries that was furnished by or on behalf of the Company and such party or its respective Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company Company, on the one hand, or the Company’s Parent or its Subsidiaries, on the other hand, whether or not such Representative is purporting to act on behalf of the Company applicable party or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Companyapplicable party.

Takeover Proposal. Except as permitted by otherwise provided in this Section 5.04, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and or cause the Company’s its respective Subsidiaries and its or its respective Subsidiaries' directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the Company’s and the Company’s Subsidiaries’ respective Representatives foregoing Persons are referred to herein as such Person's “Representatives”) not to: (i) , directly or indirectly, solicit, initiate, or take any action to knowingly facilitate or knowingly encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or, subject to Section 5.04(b), below: (iii) continue, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or Opco LLC or any of the Company’s their respective Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or Opco LLC or any of the Company’s their respective Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; Proposal (iii) except where other than to ascertain facts from the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that Person making such proposal or offer for the failure to do so would cause sole purpose of the Company Board informing itself about such proposal or offer and the Person that made it and for the Company to be in breach of/be inconsistent with refer the Company’s Board’s fiduciary duties, inquiring Person to this Section 5.04); (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or Opco LLC or any of its their respective Subsidiaries; , or (ivB) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (viii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (other than an Acceptable Confidentiality Agreement) (each, a an “Company Acquisition Agreement”); or (vi) approve. Except as expressly permitted by this Section 5.04, authorize, agree, or publicly announce any intention to do any of the foregoingCompany Board shall not effect a Company Adverse Recommendation Change. The Company shallshall not, and shall cause the Company’s its Subsidiaries and the Company’s and the Company’s Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or Opco LLC or any of its their respective Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries such party to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company applicable party or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, neither the Company shall notCompany, on the one hand, nor Parent, on the other hand, shall, and each shall direct and cause the Company’s their respective Subsidiaries and the Company’s and the Company’s their or their respective Subsidiaries’ respective Representatives not to: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) continue, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or Parent or any of the Company’s their respective Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or Parent or any of the Company’s their respective Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee Company Board or Parent Board, as applicable, makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board reasonably be expected to be in breach of/be inconsistent with the Company’s Board’s its fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or Parent, as applicable, or any of its their respective Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a an “Company Acquisition Agreement”); or (viv) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company on the one hand, and Parent, on the other hand, shall, and shall cause the Company’s their respective Subsidiaries and the Company’s their and the Company’s their Subsidiaries’ Representatives to (i) cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal Proposal, (ii) immediately terminate all physical and shall electronic data room access previously granted to such third party (or its Representatives) and (iii) use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisorsRepresentatives) in possession of non-public information in respect of the Company or Parent, as applicable, and any of its their respective Subsidiaries that was furnished by or on behalf of the Company and such party or its respective Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or its Subsidiaries, on the Company’s one hand, or the Parent or its Subsidiaries, on the other hand, whether or not such Representative is purporting to act on behalf of the Company applicable party or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Companyapplicable party.

Takeover Proposal. Except as permitted by this Section 5.046.03, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and cause the Company’s each of its Subsidiaries and the Company’s its and the Company’s their respective officers and directors, and shall instruct its and its Subsidiaries’ respective other Representatives acting on their behalf not to: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any a Takeover Proposal; (ii) continue, conduct, or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover ProposalProposal (other than, in response to an unsolicited inquiry that did not arise from a material breach of this Section 6.03(a)), solely to ascertain facts from the Person making such Takeover Proposal about the terms of such Takeover Proposal and the Person that made it, and to refer the inquiring Person to this Section 6.03(a); (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (viiv) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, and shall cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ Representatives acting on their behalf to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 6.03 by any Representative director, officer or investment banker of the Company or the Company’s its Subsidiaries, whether or not such Representative director, officer or investment banker is purporting to act on behalf of the Company or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 6.03 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04Company shall, during the period from the date of this Agreement until the earlier of the Effective Time and each shall cause their respective Subsidiaries and its or the valid termination of this Agreement in accordance its respective Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with its termsrespect to any Person, the Company shall not, and shall direct and cause the Companyforegoing Persons are referred to herein as such Person’s Subsidiaries and the Company’s and the Company’s Subsidiaries’ respective Representatives “Representatives”) not to: (i) , directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or (iii) continueencourage, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or Parent or any of the Company’s their respective Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or Parent or any of the Company’s their respective Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (vii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a an “Company Acquisition Agreement”); , (iii) agree to, approve or (vi) approve, authorize, agree, or publicly announce any intention to do any of the foregoingrecommend an Takeover Proposal. The Company shall, and shall cause the Company’s their respective Subsidiaries and the Company’s their and the Company’s their Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or Parent, as applicable, and any of its their respective Subsidiaries that was furnished by or on behalf of the Company and such party or its respective Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s its Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company applicable party or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Companyapplicable party.

Takeover Proposal. Except as permitted by this Section 5.046.03, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the Company shall not, and shall direct and cause the Company’s each of its Subsidiaries and the Company’s its and the Company’s their respective officers and directors, and shall instruct its and its Subsidiaries’ respective other Representatives acting on their behalf not to: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any a Takeover Proposal; (ii) continue, conduct, or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover ProposalProposal (other than, in response to an unsolicited inquiry that did not arise from a material breach of this Section 6.03(a)), solely to ascertain facts from the Person making such Takeover Proposal about the terms of such Takeover Proposal and the Person that made it, and to refer the inquiring Person to this Section 6.03(a); (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (viiv) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, and shall cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.’

Takeover Proposal. Except with respect to actions or omissions taken by or at the direction of Parent, Merger Sub or Parent Guarantor, including in Parent Guarantor’s capacity as permitted by this Section 5.04, during the period from the date of this Agreement until the earlier a director or officer of the Effective Time Company or any Subsidiary of the valid termination of this Agreement in accordance with its termsCompany, the Company shall not, and shall direct and cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ respective Representatives directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to: (i) , directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or, subject to Section 5.03(b): (iii) continue, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iiiii) (A) except where the Special Committee Company Board makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure doing so could reasonably be expected to do so would cause the Company Board to be result in breach of/be inconsistent with the Company’s Board’s fiduciary dutiesa Superior Proposal, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; , or (ivB) approve any transaction under, or any third party becoming an “interested stockholderacquiring person” under, Section 203 Chapter 23B.19 of the DGCLRCW; or (viii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve, authorize, agree, or publicly announce any intention to do any of the foregoingother than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.03(b). The Company shall, and shall cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04, during During the period from the date term of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its termsAgreement, the ----------------- Company shall not, and shall direct and cause the Company’s not authorize or permit any of its Subsidiaries and the Company’s and the Company’s or any of its or its Subsidiaries’ respective Representatives not to: (i) ' directors, officers, employees, agents or representatives, directly or indirectly, solicit, to solicit or initiate, or knowingly facilitate furnish or encourage the submission of disclose non-public information in furtherance of, any Takeover Proposal inquiries or the making of any proposal with respect to any recapitalization, merger, consolidation or other business combination involving the Company, or the acquisition of the outstanding capital stock of the Company (other than upon exercise of options or warrants which are outstanding as of the date hereof) or any Subsidiary of the Company or the acquisition of any substantial portion of the assets of the Company and its Subsidiaries, taken as a whole, in a single transaction or a series of related transactions, or any combination of the foregoing (a "Takeover -------- Proposal"), or negotiate or otherwise engage in discussions with any person -------- (other than Parent, Sub or their respective directors, officers, employees, agents or representatives) with respect to any Takeover Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, and will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any proposal for a Takeover Proposal; provided that, the Company may furnish information to, and negotiate or otherwise engage in discussions with but only to the extent required by the fiduciary duties of the Company directors under applicable law, any party (a "Company ------- Third Party") who (x) delivers a bona fide written proposal for a Takeover ----------- Proposal which was not solicited or initiated by the Company, directly or indirectly, after the date of this Agreement and (y) enters into an appropriate confidentiality agreement with the Company (which agreement shall be no less favorable to the Company than the Confidentiality Agreement), if, but only if, the Board of Directors of the Company determines in good faith by a majority vote that such proposal could reasonably be expected to lead to any Takeover Proposala Superior Transaction (as hereinafter defined); (ii) continueprovided further, conduct, or engage that nothing in any discussions or negotiations with, disclose any non-public information relating to this Agreement shall prevent the Company or any of the Company’s Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s Subsidiaries to any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent from complying with the Company’s Board’s fiduciary duties, amend or grant any waiver or release provisions of Rule 14e-2 promulgated under any standstill or similar agreement the Exchange Act with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any a Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, and shall cause the Company’s Subsidiaries and the Company’s and the Company’s Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the CompanyProposal.

Takeover Proposal. Except as permitted by this Section 5.046.03, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its termsTime, the Company shall not, and shall direct and cause the Company’s its Subsidiaries and direct the Company’s and the Company’s its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to (and shall not authorize or knowingly permit any of its and their respective Representatives not to: (i) ), directly or indirectly, (i) solicit, endorse, encourage, initiate, or knowingly facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) continue, conduct, engage, enter into, continue or engage otherwise participate in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee Company Board makes a good faith determination, after consultation with its financial advisors advisor and outside legal counsel, that the failure to do so would cause the Company Board reasonably be expected to be in breach of/be inconsistent with the Company’s Board’s its fiduciary duties, (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; , or (ivB) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (viv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve. Except as expressly permitted by this Section 6.03, authorize, agree, or publicly announce any intention to do any of the foregoingCompany Board shall not effect a Company Adverse Recommendation Change. The Company shall, and shall cause the Company’s its Subsidiaries and direct the Company’s and the Company’s its Subsidiaries’ Representatives to (and shall not authorize or knowingly permit any of its and their respective Representatives to fail to) (x) cease immediately and cause to be terminated any and all existing activities, discussions, solicitations, initiations or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal Proposal, (y) promptly following the date hereof (and shall use in any event within three Business Days after the Company’s reasonable best efforts to cause date of this Agreement) request in writing that any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to promptly return or destroy (and confirm destruction of) all such information. Without limiting information and (z) within one Business Day after the foregoingdate of this Agreement, it is understood that terminate access to any violation of physical or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 electronic data room relating to a possible Takeover Proposal by any Representative of person described in the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Companyforegoing clause (y).

Takeover Proposal. Except as permitted by this Section 5.04, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the The Company shall not, and shall direct and cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ respective Representatives directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to: (i) , directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or, subject to Section 3.8(b): (iii) continue, conduct, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iiiii) except where the Special Committee Company Board makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s of its fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; or (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (viii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve. Except as expressly permitted by this Section 3.8, authorize, agree, or publicly announce any intention to do any of the foregoingCompany Board shall not effect a Company Adverse Recommendation Change. The Company shall, and shall cause the Company’s its Subsidiaries and the Company’s and the Company’s its Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 3.8 by any Representative of the Company or the Company’s its Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s its Subsidiaries, shall be deemed to be a breach of this Section 5.04 3.8 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the The Company shall not, and shall direct and cause the Company’s its Subsidiaries and the Company’s 's and its Subsidiaries' directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the Company’s Subsidiaries’ respective Representatives foregoing Persons are referred to herein as such Person's "Representatives") not to: (i) , directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal; , or, subject to Section 6.04(b): (iii) continue, conduct, continue to engage in or engage otherwise participate in any discussions or negotiations with, disclose furnish any non-public information relating to the Company or any of the Company’s its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of the Company’s its Subsidiaries to to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iiiii) (A) except where the Special Committee Company Board makes a good faith determination, after consultation with its financial advisors advisor and outside legal counsel, that the failure to do so would reasonably be expected to cause the Company Board Board’s actions or inactions with respect thereto to be in breach of/be inconsistent with its fiduciary duties to the Company’s Board’s fiduciary dutiesstockholders under applicable law, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; , in which event the Company may take the actions described in this clause (ivii)(A) solely to the extent necessary to permit a third party to make, on a confidential basis to the Company Board, a Takeover Proposal, conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Takeover Proposal) in accordance with, and otherwise complying with, this Section 6.04 or (B) approve any transaction under, or any third party becoming an “"interested stockholder” " under, Section 203 of the DGCL; or (viii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Takeover Proposal (each, a “"Company Acquisition Agreement”"); or . Except as expressly permitted by (viand only in accordance with) approvethis Section 6.04, authorize, agree, or publicly announce neither the Company Board nor any intention to do any of the foregoingcommittee thereof shall effect a Company Adverse Recommendation Change. The Company shall, and shall cause the Company’s its Subsidiaries and the Company’s 's and the Company’s its Subsidiaries’ ' Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal Proposal. As promptly as reasonably practicable (and in any event within two (2) Business Days) following the date hereof, the Company shall request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all information previously furnished to any Person (other than Parent) that has, within the one (1)-year period prior to the date of this Agreement, made or indicated an intention to make a Takeover Proposal, and the Company shall, and shall use cause the Company’s reasonable best efforts Subsidiaries to, terminate access by any third Person who has made or would reasonably be expected to cause any such third party make a Takeover Proposal (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company other than Parent and its Subsidiaries Representatives) to return any data room (virtual or destroy (and confirm destruction ofactual) all such information. Without limiting the foregoing, it is understood that containing any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf information of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.

Takeover Proposal. Except as permitted by this Section 5.04, during the period from (a) From the date of this Agreement until the earlier of the Effective Time First Tranche Closing or the valid termination of this Agreement pursuant to Section 9.2, the Company and its subsidiaries will not, directly or indirectly through their officers, directors, employees, agents or otherwise, (i) solicit, initiate or encourage any Takeover Proposal or (ii) engage in accordance negotiations with, or disclose any nonpublic information relating to the Company or any of its subsidiaries to, or afford access to the properties, books or records of the Company or any of its subsidiaries to, any person that has indicated to the Company that it may be considering making, or that has made, a Takeover Proposal or whose efforts to formulate a Takeover Proposal would knowingly or could reasonably be expected to be assisted thereby; provided, nothing herein shall prohibit the Company's Board of Directors from taking and disclosing to the Company's shareholders a position with respect to an unsolicited tender or exchange offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited Takeover Proposal, or an unsolicited written expression of interest that the Company reasonably expects to lead to a Takeover Proposal, shall be received by the Board of Directors of the Company, then, to the extent the Board of Directors of the Company believes in good faith (after consultation with its termsfinancial advisor) (i) that such Takeover Proposal would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement and (ii) after reasonable inquiry by the Company, that the third party making such Takeover Proposal is financially capable of consummating such Takeover Proposal (any Takeover Proposal meeting such conditions being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that it is necessary for the Board of Directors of the Company to comply with its fiduciary duties to shareholders under applicable law, 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 and take such other actions as are consistent with the fiduciary obligations of the Company's Board of Directors, and such actions shall not be considered a breach of this Section 9.1 or any other provisions of this Agreement, provided that (A) upon each such determination the Company notifies the Landmark Parties of such determination by the Company's Board of Directors and provides the Landmark Parties with a true and complete copy of the Superior Proposal received from such third party, if the Superior Proposal is in writing, or a written summary of all material terms and conditions thereof (including the identity of the person initiating the Superior Proposal), if it is not in writing, (B) the Company provides the Landmark Parties (simultaneously with the time that such documents are provided to such third party) with all documents containing or referring to non-public information of the Company that are supplied to such third party, to the extent not previously supplied by the Company to the Landmark Parties and (C) the Company provides such non-public information to any such third party pursuant to a non-disclosure agreement at least as restrictive as to confidential information as the Confidentiality Agreement between the Company and Landmark dated as of March 6, 2001. (b) The Company shall not, and shall direct and cause not permit any of its officers, directors, employees (acting on behalf of the Company’s Subsidiaries ) or other representatives to agree to or endorse any Takeover Proposal unless the Company shall have terminated this Agreement pursuant to Section 9.2 and paid the Company’s and Landmark Parties all amounts payable to the Company’s Subsidiaries’ respective Representatives Landmark Parties pursuant to Section 9.4. Notwithstanding anything in this Agreement to the contrary, the Company shall not to: (i) directly accept or indirectly, solicit, initiaterecommend to its shareholders, or knowingly facilitate enter into any agreement concerning, a Superior Proposal for a period of not less than 48 hours after the Landmark Parties' receipt of a true and complete copy of such Superior Proposal, if the Superior Proposal is in writing, or encourage a written summary of all material terms and conditions thereof, if it is not in writing. The Company will immediately notify the submission Landmark Parties after receipt of any Takeover Proposal or the any notice that any person is considering making of a Takeover Proposal or any proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) continue, conduct, or engage in any discussions or negotiations with, disclose any request for non-public information relating to the Company or any of the Company’s Subsidiaries to, afford its subsidiaries or for access to the business, properties, assets, books, or records of the Company or any of the Company’s Subsidiaries to any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (iii) except where the Special Committee makes a good faith determination, after consultation with its financial advisors and outside legal counsel, that the failure to do so would cause the Company Board to be in breach of/be inconsistent with the Company’s Board’s fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; (v) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vi) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, and shall cause the Company’s Subsidiaries and the Company’s and the Company’s Subsidiaries’ Representatives to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall use the Company’s reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. Without limiting the foregoing, it is understood that any violation of or the taking of actions inconsistent with the restrictions set forth in this Section 5.04 by any Representative of the Company or the Company’s Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of the Company’s Subsidiaries, shall be deemed to be a breach of this Section 5.04 by the Company.,