Common use of Takeover Proposal Clause in Contracts

Takeover Proposal. (a) From the date of this Agreement until the earlier of the First Tranche Closing or the 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 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 financial 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.

Takeover Proposal. (a) From Except as permitted by this Section 6.03, during the period from the date of this Agreement until the earlier of the First Tranche Closing or the termination of this Agreement pursuant to Section 9.2Effective Time, the Company shall not, and shall cause its Subsidiaries and direct the Company’s and its subsidiaries will notSubsidiaries’ 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 to), directly or indirectly through their officers, directors, employees, agents or otherwiseindirectly, (i) solicit, initiate endorse, encourage, initiate, 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) engage conduct, engage, enter into, continue or otherwise participate in any discussions or negotiations with, or disclose any nonpublic non-public information relating to the Company or any of its subsidiaries Subsidiaries to, or afford access to the business, properties, books assets, books, or records of the Company or any of its subsidiaries Subsidiaries to, any person that has indicated to the Company that it may be considering makingor 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 Company Board makes a Takeover Proposal or whose efforts good faith determination, after consultation with its financial advisor and outside legal counsel, that the failure to formulate a Takeover Proposal do so would knowingly or could reasonably be expected to be assisted thereby; providedinconsistent with its fiduciary duties, nothing herein -------- shall prohibit the Company's Board of Directors from taking and disclosing to the Company's shareholders a position (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 (B) approve any transaction under, or any third party becoming an unsolicited tender “interested stockholder” under, Section 203 of the DGCL; or exchange offer pursuant (iv) 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 Rules 14d-9 any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.03, the Company Board shall not effect a Company Adverse Recommendation Change. The Company shall, and 14e-2 promulgated under shall cause its Subsidiaries and direct the Exchange Act. Notwithstanding the Company’s and its Subsidiaries’ Representatives to (and shall not authorize or knowingly permit any of its and their respective Representatives to fail to) (x) cease immediately preceding sentenceand cause to be terminated any and all existing activities, discussions, solicitations, initiations or negotiations, if an unsolicited any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal, (y) promptly following the date hereof (and in any event within three Business Days after the date of this Agreement) request in writing that any such third party (or an unsolicited written expression its agents or advisors) in possession 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 non-public information in respect of the Company believes in good faith (after consultation with or any of its financial advisor) (i) Subsidiaries that such Takeover Proposal would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point was furnished by or on behalf 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 Subsidiaries to promptly return or destroy (and other representatives retained by it may furnish in connection therewith confirm destruction of) all such information and take such other actions as are consistent with (z) within one Business Day after 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 date 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 terminate access to any such third party pursuant physical or electronic data room relating to a non-disclosure agreement at least as restrictive as to confidential information as possible Takeover Proposal by any person described in the Confidentiality Agreement between the Company and Landmark dated as of March 6, 2001foregoing clause (y).

Takeover Proposal. (a) From Subject to the date terms of this Section 5.04, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of (x) the First Tranche Closing or the valid termination of this Agreement pursuant to Section 9.2or (y) the Effective Time, neither the Company nor any of its Subsidiaries shall, and the Company shall cause its and its subsidiaries will notSubsidiaries’ directors, officers and employees not to, and shall direct and use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly through their officers, directors, employees, agents or otherwise, indirectly: (i) solicit, initiate initiate, propose, knowingly induce, knowingly facilitate, or knowingly encourage the submission of any Takeover Proposal or any inquiries, proposals or offers that constitute or could reasonably be expected to lead to a Takeover Proposal (including by way of furnishing non-public information), (ii) engage enter into or participate in any discussions or negotiations withor respond to any inquiries with any third party for the purpose of facilitating, inducing or disclose encouraging any nonpublic inquiry, proposal or offer with respect to, that constitutes or could reasonably be expected to lead to a Takeover Proposal, (iii) furnish to any Person (other than Parent, Merger Sub or their respective designees) any non-public information relating to the Company or any of its subsidiaries to, Subsidiaries or afford to any Person access to the business, properties, books assets, books, records or records personnel, of the Company or any of its subsidiaries toSubsidiaries, in any person that has indicated such case to induce the Company that it may be considering making, submission or announcement or to encourage or facilitate any inquiry, proposal or offer that has made, a Takeover Proposal or whose efforts to formulate a Takeover Proposal would knowingly constitutes 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 (iv) approve, recommend, enter into or propose to approve, recommend or 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 a Takeover Proposal, other than an Acceptable Confidentiality Agreement permitted by this Section 5.04 (each, a “Company Acquisition Agreement”), or (v) grant any waiver, amendment or release under any “Standstill” or confidentiality agreement or fail to enforce the terms of any such “standstill” or similar provision of any confidentiality (unless with respect to this clause (v) the Company Board has determined in good faith, after consultation with outside legal counsel, that failure to take such action would be received by the Board of Directors a violation of the directors’ fiduciary duties under applicable Law, and if such action is so taken, shall provide a proportionate release, amendment or waiver under the standstill in the Confidentiality Agreement). The Company and its Subsidiaries shall, and the Company shall cause the Company’s and its Subsidiaries’ Representatives to cease immediately and cause to be immediately terminated any and all existing activities, thendiscussions, or negotiations, if any, with any third party conducted prior to the extent the Board date hereof with respect to any Takeover Proposal or any inquiry, proposal or offer which constitutes or could reasonably be expected to lead to, a Takeover Proposal, and shall promptly request any such third party (or its agents, representatives or advisors, including financing sources) in possession of Directors non-public information in respect of the Company believes or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries in good faith (after consultation connection with its financial advisor) (i) that such third party’s consideration of a Takeover Proposal wouldto return or destroy all such information and shall immediately shut off all access of any such third party (other than Parent, Merger Sub or their respective designees) to any electronic data room maintained by the Company or on its behalf. Notwithstanding the foregoing, at any time prior to obtaining the Requisite Company Vote, if consummated, the Company or any of the Representatives of the Company or its Subsidiaries has received a bona fide written Takeover Proposal from any third party that did not result in a transaction more favorable to the Company's shareholders from a financial point breach of view than this Section 5.04, the transaction contemplated by this Agreement Company and (ii) after reasonable inquiry by the Company, that its Representatives may contact the third party making such Takeover Proposal is financially capable to clarify any ambiguous terms and conditions of consummating such Takeover Proposal (any but not engage in negotiations or provide non-public information) solely to the extent necessary in order to determine if such Takeover Proposal meeting constitutes or would reasonably be expected to result in a Superior Proposal or inform such conditions being referred to in this Agreement as a "Superior Proposal") and the Board of Directors Person of the Company determines ----------------- in good faith after consultation with outside legal counsel that it is necessary for the Board of Directors existence of the Company to comply with its fiduciary duties to shareholders under applicable lawprovisions of this Section 5.04; provided, that, the Company and otherwise complies with its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish obligations set forth 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 Proposal5.04(c), 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.

Takeover Proposal. (a) From and after the date of this Agreement until the earlier of the First Tranche Closing or the termination of this Agreement pursuant to Section 9.2Agreement, the Company agrees that (i) it and its subsidiaries will notofficers, directly or indirectly through directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, employeesand employees shall, and (iii) it shall use its commercially reasonable efforts to ensure that its and the Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents or otherwise(collectively, "Company Representatives"), immediately cease and cause to be terminated immediately all existing discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal. From and after the date of this Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its commercially reasonable efforts to cause each of the Company Representatives not to (i) directly or indirectly, solicit, initiate or knowingly encourage any a Takeover Proposal or Proposal, (ii) engage enter into any agreement or agreement in 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 principle with respect to an unsolicited tender any Takeover Proposal, (iii) participate in any discussions or exchange offer pursuant negotiations regarding, or furnish or disclose to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentenceany Person (other than a party to this Agreement) any information with respect to, if an unsolicited a Takeover Proposal, or (iv) other than as contemplated by this Agreement, grant any approval pursuant to Section 00-000-000 of the TBCA; provided, however, that, if at any time prior to Shareholder Approval: (A) the Company receives an unsolicited written expression of interest that Takeover Proposal from a third party after the Company reasonably expects to lead to a Takeover Proposal, shall be received by date hereof and (B) the Board of Directors of the Company, then, to the extent the Board of Directors of the Company believes Special Committee determines in good faith (after consultation with its financial advisor) (iadvisors and legal counsel) that such Takeover Proposal wouldconstitutes or could reasonably be expected to lead to a Superior Proposal; then the Company may, if consummatedsubject to compliance with this Section 5.2, result in a transaction more favorable (i) furnish information and/or draft agreements with respect to the Company's shareholders from Company to the Person making such Takeover Proposal (and its representatives) pursuant to a financial point confidentiality agreement which restricts such Person no less than Parent is then restricted by the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement), provided that a copy of view than all such information that has not previously been delivered to Parent is delivered to Parent prior to or concurrently with the transaction contemplated by this Agreement delivery to such Person, and (ii) after reasonable inquiry by participate in discussions or negotiations with the Company, that the third party Person making such Takeover Proposal is financially capable of consummating (and its Representatives) regarding such Takeover Proposal (any Takeover Proposal meeting such conditions being referred to in Proposal. Notwithstanding the foregoing, during the period from the date of this Agreement as a "Superior Proposal"through the Effective Time, (i) and the Board of Directors of neither the Company determines ----------------- in good faith after consultation with outside legal counsel that nor any of Company Subsidiary shall terminate, amend, modify or waive any provision of any confidentiality or standstill agreement to which it is necessary for the Board of Directors of a party and (ii) the Company shall enforce, to comply with its fiduciary duties to shareholders the fullest extent permitted 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 Agreementany such agreement, provided that (A) -------- upon each such determination the Company notifies the Landmark Parties including, but not limited to, seeking to obtain injunctions to prevent any breaches of such determination by agreements and to enforce specifically 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 provisions 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, 2001court having jurisdiction.

Takeover Proposal. (a) From the date of this Agreement until the earlier of the First Tranche Closing or the 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 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 financial 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.

Takeover Proposal. The Company shall not, and shall direct and cause its Subsidiaries and the Company's and its Subsidiaries' directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (a) From the date of this Agreement until the earlier of the First Tranche Closing or the termination of this Agreement pursuant with respect to Section 9.2any Person, the Company and its subsidiaries will notforegoing Persons are referred to herein as such Person's "Representatives") not to, directly or indirectly through their officersindirectly, directors, employees, agents or otherwise, (i) solicit, initiate 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) conduct, continue to engage in or otherwise participate in any discussions or negotiations with, or disclose furnish any nonpublic information relating to the Company or any of its subsidiaries Subsidiaries to, or afford access to the business, properties, books assets, books, or records of the Company or any of its subsidiaries Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any person effort by, any third party (or its potential sources of financing) that is seeking to make, or has indicated made, any Takeover Proposal; (ii) (A) except where the Company Board makes a good faith determination, after consultation with its financial advisor and outside legal counsel, that the failure to do so would reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s stockholders 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 (ii)(A) solely to the extent necessary to permit a third party to make, on a confidential basis to the Company that it may be considering making, or that has madeBoard, 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 (iii) 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 whose efforts to formulate a Takeover Proposal would knowingly any proposal or offer that 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 ProposalProposal (each, a "Company Acquisition Agreement"). Except as expressly permitted by (and only in accordance with) this Section 6.04, neither the Company Board nor any committee thereof shall be received by the Board of Directors of effect a Company Adverse Recommendation Change. The Company shall, and shall cause its Subsidiaries and the Company's and its Subsidiaries' Representatives to cease immediately and cause to be terminated any and all existing activities, thendiscussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover 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 Board applicable confidentiality agreement) of Directors of the Company believes in good faith all information previously furnished to any Person (after consultation with its financial advisor) (iother than Parent) that such Takeover Proposal wouldhas, if consummated, result in a transaction more favorable within the one (1)-year period prior 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 date of this Agreement, provided that (A) -------- upon each such determination made or indicated an intention to make a Takeover Proposal, and the Company notifies the Landmark Parties of such determination by shall, and shall cause the Company's Board of Directors ’s Subsidiaries to, terminate access by any third Person who has made or would reasonably be expected to make a Takeover Proposal (other than Parent 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, its Representatives) to any data room (virtual 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, (Bactual) 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 any information of the Company that are supplied to such third party, to or any of 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, 2001Company’s Subsidiaries.

Takeover Proposal. (a) From and after the date of this Agreement until the earlier of the First Tranche Closing or the termination of this Agreement pursuant to Section 9.2Agreement, the Company agrees that (i) it and its subsidiaries will notofficers, directly or indirectly through directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, employeesand employees shall, and (iii) it shall use its best efforts to ensure that its and the Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents (collectively, "Company Representatives"), immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or otherwisethat would reasonably be expected to lead to, any Takeover Proposal. From and after the date of this Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its best efforts to cause each of the Company Representatives not to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourage facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal, (iii) participate in any discussions or negotiations regarding, or furnish or disclose to any person (other than a party to this Agreement) any information with respect to the Company, or otherwise cooperate in any way, in connection with any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Takeover Proposal or (iiiv) engage in negotiations with, grant any approval pursuant to Section 203(a)(1) or disclose any nonpublic information relating to the Company or any of its subsidiaries to, or afford access to the properties, books or records 203(a)(3) 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 therebyDGCL; provided, nothing herein -------- shall prohibit the Company's Board of Directors from taking and disclosing however, that, if at any time prior 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 Stockholder Approval: (A) the Exchange Act. Notwithstanding the immediately preceding sentence, if Company receives an unsolicited Takeover Proposal, or an unsolicited written expression of interest that Proposal from a third party (under circumstances in which the Company reasonably expects to lead to a Takeover Proposal, shall be received by has complied with the Board foregoing provisions of Directors of the Company, then, to the extent the Board of Directors of the Company believes in good faith this Section 5.2(a)); (after consultation with its financial advisorB) (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 and a financial advisor of nationally recognized reputation) that it is necessary for such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal; (C) the Board of Directors of the Company determines in good faith (after consultation with outside counsel) that failure to do so would be a breach of its fiduciary duties under applicable law; and (D) the Company gives Parent and Merger Sub two Business Days prior written notice of the identity of such third party, the terms and conditions of such Takeover Proposal and the Company's intention to furnish information to, or participate in discussions or negotiations with the person making such Takeover Proposal, then the Company may, subject to compliance with Section 5.2(a), (i) furnish information with respect to the Company Entities to the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement which includes "standstill" provisions and which restricts such person no less than Parent is then restricted by the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its fiduciary duties to shareholders obligations 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 copy of all such information that has not previously been delivered to Parent is delivered to Parent simultaneously with delivery to such person, and (Aii) -------- upon each participate in discussions or negotiations with the person making such determination Takeover Proposal (and its representatives) regarding such Takeover Proposal. The Company agrees that it will promptly inform the Company notifies Subsidiaries and the Landmark Parties of such determination by the Company's Board of Directors and provides the Landmark Parties with a true and complete copy Company Representatives of the Superior Proposal received from such third party, if the Superior Proposal is obligations undertaken in writing, or a written summary of all material terms and conditions thereof (including the identity of the person initiating the Superior Proposalthis Section 5.2(a), 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.

Takeover Proposal. During the term of this Agreement, the ----------------- Company shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit or initiate, or furnish or disclose non-public information in furtherance of, any 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 (aother than upon exercise of options or warrants which are outstanding as of the date hereof) From 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 until the earlier of the First Tranche Closing or the termination of this Agreement pursuant to Section 9.2, and (y) enters into an appropriate confidentiality agreement with 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 negotiations with, or disclose any nonpublic information relating which agreement shall be no less favorable 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 financial 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 CompanyConfidentiality Agreement), 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 if, but only if, the Board of Directors of the Company determines ----------------- in good faith after consultation with outside legal counsel by a majority vote that it is necessary for the Board of Directors of such proposal could reasonably be expected to lead to a Superior Transaction (as hereinafter defined); provided further, that nothing in this Agreement shall prevent 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 from complying 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 Rule 14e-2 promulgated under the Company notifies the Landmark Parties of such determination by the Company's Board of Directors and provides the Landmark Parties Exchange Act 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 respect 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, 2001Takeover Proposal.