Common use of Acquisition Proposal Clause in Contracts

Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of Purchaser, the Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officers, directors, agents and representatives including the Financial Advisor (collectively, "Representatives") not to, (i) directly or indirectly, solicit, initiate or --------------- encourage (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Proposal; provided, however, nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.5 or in any other provision of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in a Superior Proposal (as defined in Section 5.5(d)), and (B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.

Acquisition Proposal. (a) From and after the date hereofThe Company shall not, without the prior written consent nor shall it authorize or permit any Subsidiary of Purchaser, the Company to, nor shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officersit authorize or permit any officer, directorsdirector or any investment banker, agents and representatives including attorney or other advisor, agent or representative of the Financial Advisor Company or any Subsidiary of the Company (collectively, "“Representatives"”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectlyindirectly solicit or initiate the submission of, solicit, initiate or --------------- encourage any Acquisition Proposal (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposalas defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding any Acquisition Proposalregarding, or (iii) provide any confidential or nonpublic information or data furnish to any Person relating any information with respect to any Acquisition Proposal; provided, however, that nothing contained herein in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company Board from taking and disclosing to its shareholders a position with respect or entering into negotiations or discussions with, any Person in response to an unsolicited tender offer pursuant to Rules 14d-9 Acquisition Proposal made, submitted, or announced by such Person (and 14e-2 under the Exchange Act. The Company not withdrawn) and any such actions enumerated in this provision shall immediately cease not be considered a Breach of this Agreement if and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained extent that each of the following conditions is satisfied: (1) the Special Committee concludes in this Section 5.5 or in any other provision of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determinesgood faith, after consultation with the Financial Advisor and the Company's legal counselAdvisor, that (A) such third party has submitted to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in is reasonably likely to lead to a Superior Proposal (as defined in Section 5.5(d)below), and (B2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to participate in take such process action would be inconsistent with constitute a Breach of its fiduciary duties to the Company Board's fiduciary duties Stockholders under applicable law. In the event that Law; (4) the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity gives Parent written notice of the Potential Acquirer and the material terms existence of such Acquisition Proposal. If , all of the Company, after consultation with the Financial Advisor material terms and conditions of such Acquisition Proposal and the Company's legal counsel’s intention to furnish information to, determines that an Acquisition Proposal is a Superior Proposalor enter into discussions or negotiations with, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determinationPerson, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company Board, if that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has complied with not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.55.4, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall, and shall determine to provide any information to such Potential Acquirer following cause its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developmentsRepresentatives to, cease immediately all existing activities, discussions and negotiations (including with Persons other than Parent regarding any proposal that constitutes, or which the terms Company reasonably believes would lead to an Acquisition Proposal, and conditions will take the necessary steps to inform the Persons referred to above of the Acquisition Proposal) on a current basisobligations undertaken in this Section 5.4.

Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of Purchaser, the The Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officersnot, directorsnor shall it authorize or permit any Company Subsidiary to, agents and representatives including the Financial Advisor nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") of, nor shall it authorize and it shall use commercially reasonable efforts not to permit any employee of, the Company or any Company Subsidiary to, (i) directly or indirectly, indirectly solicit, initiate or --------------- encourage the submission of, any Acquisition Proposal (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposalas defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any discussions or negotiations regarding any Acquisition Proposalregarding, or (iii) provide any confidential or nonpublic information or data furnish to any Person relating any information with respect to any Acquisition Proposal; provided, however, that nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.5 6.4 or elsewhere in any other provision this Agreement shall ----------- prohibit the Company, before the Expiration Date or adoption of this Agreement, Agreement by the Company and Stockholders, if applicable, from furnishing information regarding the Company Board may ask questions ofor entering into negotiations or discussions with, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making person in response to an unsolicited Acquisition Proposal made, submitted, or announced by such person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a "Potential Acquirer"), ------------------ solely for Breach of this Agreement if and to the purpose extent that each of evaluating the following conditions is satisfied: (1) such Acquisition Proposal will, in the good faith judgment of the Company Board, lead to a Superior Proposal, if (2) such Acquisition Proposal is not attributable to a Breach by the Company of this Section 6.4(a) or Section 6.4(b); (3) the Company -------------- -------------- Board or any committee thereof determinesconcludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the Financial Advisor failure to take such action would constitute a Breach of its fiduciary duties to the Company Stockholders under applicable Law; (4) prior to furnishing any such information to, or entering into discussions or negotiations with, such Person, the Company gives Parent written notice of the identity of such Person, the terms and conditions of such Acquisition Proposal and the Company's legal counselintention to furnish information to, that or enter into discussions or negotiations with, such Person; (A5) the Company receives from such third party has submitted Person an executed confidentiality agreement, which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, and which shall have terms which (i) are no less favorable in the aggregate to the Company an Acquisition Proposal which has a reasonable likelihood of resulting than those set forth in a Superior Proposal (as defined in Section 5.5(d)), the Confidentiality Agreement and (Bii) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the standstill provisions of this Section 5.5, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms which are no less favorable to the Company than those set forth in the Confidentiality Agreement; and (6) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). The Company will keep the Purchaser apprised promptly shall advise Parent of any related developmentsinquiry with respect to or which could lead to an Acquisition Proposal and shall promptly inform Parent of any material change in any such Acquisition Proposal or inquiry. Subject to the foregoing provisions of this Section 6.4, the Company shall, and shall cause its ----------- Representatives to, cease immediately all existing activities, discussions and negotiations (including with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the terms Company reasonably believes would lead to an Acquisition Proposal, and conditions will take the necessary steps to inform the Persons referred to above of the Acquisition Proposal) on a current basis.obligations undertaken in this Section 6.4. -----------

Acquisition Proposal. (a) From and after the date hereofThe Company shall not, without the prior written consent of Purchasernor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor or representative of, the Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officers, directors, agents and representatives including the Financial Advisor (collectively, "the “Representatives"”) not to, (i) and it shall use commercially reasonable efforts not to permit any employee of the Company to, directly or indirectly, (a) solicit, initiate or --------------- encourage the submission of any Acquisition Proposal or (including by way of furnishing b) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or assistance) agree to or endorse, or take any other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal which constitutes that constitutes, or may reasonably be expected to lead to an to, any Acquisition Proposal. Immediately after the execution and delivery of this Agreement, (ii) enter into or participate in the Company will cease and terminate any existing activities, discussions or negotiations regarding with any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data parties conducted heretofore with respect to any Person relating to any possible Acquisition Proposal; Proposal provided, howeverthat notwithstanding anything to the contrary contained in this Agreement, nothing contained herein in this Section 5.4 or any other provision hereof shall prohibit the Company or the Company Board from taking and disclosing to its shareholders the Company Stockholders a position with respect to an unsolicited a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.5 or in any other provision of this Agreementforegoing, the Company may furnish information concerning its businesses, properties or assets to any Person or “group” (as defined in the Exchange Act and the Company Board rules promulgated thereunder) and may ask questions of, consider negotiate and clarify a proposal from, participate in discussions and conduct a due diligence investigation of (but not negotiate negotiations with such Person or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in group concerning a Superior Proposal (as defined in Section 5.5(d)below), and provided (Bi) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it Person or group shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to have entered into a confidentiality agreement on terms (which shall be no less favorable to the Company restrictive than the Confidentiality Agreement. The Company will keep confidentiality agreement executed by Parent in connection with this Agreement and the Purchaser apprised of any related developments, discussions transactions contemplated hereby) and negotiations (including the terms and conditions of the Acquisition Proposalii) on a current basis.that:

Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of Purchaser, the The Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officersnot, directorsnor shall it authorize or permit any Company Subsidiary to, agents and representatives including the Financial Advisor nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "RepresentativesREPRESENTATIVES") not of, the Company or any Company Subsidiary to, (i) directly or indirectly, indirectly solicit, initiate or --------------- encourage the submission of, any Acquisition Proposal (including by way of furnishing as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information or assistance) with respect to, or take any other action to facilitate any inquiries or the making of any proposal which constitutes that constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Proposal; provided, however, that nothing contained herein in this SECTION 6.4 or elsewhere in this Agreement shall prohibit the Company Board from taking and disclosing to its shareholders a position complying with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease Act with regard to a tender or exchange offer not made in violation of this SECTION 6.4; and terminate any existing solicitationprovided, initiationfurther, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained that nothing in this Section 5.5 SECTION 6.4 or elsewhere in any other provision this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement, Agreement by the Company and Shareholders, if applicable, from furnishing information regarding the Company Board may ask questions ofor entering into negotiations or discussions with, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted person in response to the Company an Acquisition Proposal which has made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a reasonable likelihood termination of resulting in a Superior Proposal (as defined in Section 5.5(d)this Agreement pursuant to SECTION 9.1(C), and (B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter entering into the process described abovean agreement accepting or providing for, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider any such Acquisition Proposal would actions enumerated in this provision shall not be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions considered a Breach of this Section 5.5, may participate in discussions or negotiations Agreement if and to the extent that each of the following conditions is satisfied: (including, as a part thereof, making any counterproposal1) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is not attributable to a Superior Proposal Breach by the Company of this SECTION 6.4(A) or SECTION 6.4(B); (2) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that it shall promptly (within two business days) inform Purchaser in writing as is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the fact that Company Shareholders under applicable Law; (3) prior to furnishing any such information is to, or entering into discussions or negotiations with, such person, the Company gives Parent written notice of the identity of such person, the terms and conditions of such Acquisition Proposal and the Company's intention to be provided. The furnish information to, or enter into discussions or negotiations with, such Person; (4) the Company agrees that receives from such Person an executed confidentiality agreement which shall not in any non-public way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement such Person by or on behalf of the Company, restrictions on trading and hostile take-over activities and other terms no less favorable to the Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). The Subject to the foregoing provisions of this SECTION 6.4(A), the Company will keep the Purchaser apprised of any related developmentsshall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations (including with Persons other than Parent and Buyer regarding any proposal that constitutes, or may reasonably be expected to lead to, a Acquisition Proposal, and will take the terms and conditions necessary steps to inform the Persons referred to above of the Acquisition Proposal) on a current basisobligations undertaken in this SECTION 6.4.

Acquisition Proposal. (a) From and after the date hereof until the Effective Time or the termination hereof, without the prior written consent of PurchaserCheckers and Rally's and their respective Subsidiaries will not, the Company shall not and will not authorize, permit or cause its Subsidiaries and its and its Subsidiaries' their respective officers, directors, employees or other agents and representatives including the Financial Advisor (collectivelyto, "Representatives") not todirectly or indirectly, (i) directly or indirectly, take any action to solicit, initiate or --------------- encourage any Acquisition Proposal (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposalas hereinafter defined), (ii) enter waive any provision of any standstill or similar agreements entered into by Rally's or participate Checkers or any of them with respect to Rally's or Checkers, (iii) engage in any discussions or negotiations regarding or disclose any Acquisition Proposalnonpublic information relating to any other party, respectively, or (iiiiv) provide any confidential afford access to their respective properties, books or nonpublic information or data records to any Person relating to any person that may be considering making, or has made, an Acquisition Proposal; provided, however, nothing . Nothing contained herein in this Section 6.6 shall prohibit the Company Board Rally's or Checkers and their respective Boards of Directors from (i) taking and disclosing to its shareholders a position with respect to an unsolicited a tender offer by a third party pursuant to Rules 14d-9 and 14e-2 14e-2(a) promulgated by the Commission under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.5 or in any other provision of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any ii) furnishing information to, without the Purchaser's prior written consent) or entering into negotiations with, any third party making person or entity that makes an unsolicited Acquisition Proposal (bona fide proposal to acquire such party pursuant to a "Potential Acquirer")merger, ------------------ solely for consolidation, share exchange, purchase of a substantial portion of the purpose of evaluating such Acquisition Proposalassets, if business combination or other similar transaction, if, and only to the Company Board or any committee thereof determinesextent that, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third Board of Directors determines in the good faith exercise of its informed business judgment and after receiving the advice and recommendation of its special committee of the Board of Directors that the Acquisition Proposal is or could be more advantageous to their respective stockholders than the transactions contemplated by this Agreement (a "Superior Proposal"), (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party has submitted provides written notice to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in a Superior Proposal (as defined in Section 5.5(d))other parties hereto to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (BC) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the failure Board of Directors to participate in such process would be inconsistent comply with the Company Board's its fiduciary duties under applicable to its stockholders imposed by law. In ) such party keeps the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity other parties hereto informed of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised status of any related developments, discussions and such negotiations (including the terms and conditions of the Acquisition Proposal) on a current basisor discussions.

Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of Purchaser, the The Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officersnot, directorsnor shall it authorize or permit any Company Subsidiary to, agents and representatives including the Financial Advisor nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") not of, the Company or any Company Subsidiary to, (i) directly or indirectly, indirectly solicit, initiate or --------------- encourage the submission of, any Acquisition Proposal (including by way of furnishing as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information or assistance) with respect to, or take any other action to facilitate any inquiries or the making of any proposal which constitutes that constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Proposal; provided, however, that nothing contained herein in this Section 6.4 or elsewhere in this Agreement shall prohibit ----------- the Company Board from taking and disclosing to its shareholders a position complying with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and terminate any existing solicitationprovided, initiationfurther, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained that nothing in this Section 5.5 6.4 or ----------- elsewhere in any other provision this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement, Agreement by the Company and Shareholders, if applicable, from furnishing information regarding the Company Board may ask questions ofor entering into negotiations or discussions with, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted person in response to the Company an Acquisition Proposal which has made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a reasonable likelihood termination of resulting in a Superior Proposal (as defined in this Agreement pursuant to Section 5.5(d)9.1(c), and (B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter entering into the process described abovean agreement accepting or -------------- providing for, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider any such Acquisition Proposal would actions enumerated in this provision shall not be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions considered a Breach of this Section 5.5, may participate in discussions or negotiations Agreement if and to the extent that each of the following conditions is satisfied: (including, as a part thereof, making any counterproposal1) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished not attributable to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to Breach by the Company than of this Section 6.4(a) -------------- or Section 6.4(b); (2) the Confidentiality Agreement. The Company will keep the Purchaser apprised Board of any related developments, discussions and negotiations (including the terms and conditions Directors of the Acquisition Proposal) on a current basis.Company concludes in good -------------- faith, after consultation with its outside legal counsel, that it is reasonably

Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of Purchaser, the The Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officersnot, directorsnor shall it authorize or permit any Company Subsidiary to, agents and representatives including the Financial Advisor nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") not of, the Company or any Company Subsidiary to, (i) directly or indirectly, indirectly solicit, initiate or --------------- encourage the submission of, any Acquisition Proposal (including by way of furnishing as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information or assistance) with respect to, or take any other action to facilitate any inquiries or the making of any proposal which constitutes that constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Proposal; provided, however, that nothing contained herein in this Section 6.4 or elsewhere in this Agreement shall ----------- prohibit the Company Board from taking and disclosing to its shareholders a position complying with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and terminate any existing solicitationprovided, initiationfurther, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained that nothing in this Section 5.5 6.4 or ----------- ----------- elsewhere in any other provision this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement, Agreement by the Company and Shareholders, if applicable, from furnishing information regarding the Company Board may ask questions ofor entering into negotiations or discussions with, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted person in response to the Company an Acquisition Proposal which has made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a reasonable likelihood termination of resulting in a Superior Proposal (as defined in this Agreement pursuant to Section 5.5(d)9.1(c), and (B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter entering into the process described abovean agreement accepting or -------------- providing for, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider any such Acquisition Proposal would actions enumerated in this provision shall not be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions considered a Breach of this Section 5.5, may participate in discussions or negotiations Agreement if and to the extent that each of the following conditions is satisfied: (including, as a part thereof, making any counterproposal1) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is not attributable to a Superior Proposal Breach by the Company of this Section 6.4(a) -------------- or Section 6.4(b); (2) the Board of Directors of the Company concludes in good -------------- faith, after consultation with its outside legal counsel, that it shall promptly (within two business days) inform Purchaser in writing as is reasonably likely that the failure to take such action would constitute a Breach of its fiduciary duties to the fact that Company Shareholders under applicable Law; (3) prior to furnishing any such information is to, or entering into discussions or negotiations with, such person, the Company gives Parent written notice of the identity of such person, the terms and conditions of such Acquisition Proposal and the Company's intention to be provided. The furnish information to, or enter into discussions or negotiations with, such Person; (4) the Company agrees that receives from such Person an executed confidentiality agreement which shall not in any non-public way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement such Person by or on behalf of the Company, restrictions on trading and hostile take-over activities and other terms no less favorable to the Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). The Subject to the foregoing provisions of this Section 6.4(a), -------------- the Company will keep the Purchaser apprised of any related developmentsshall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations (including with Persons other than Parent and Buyer regarding any proposal that constitutes, or may reasonably be expected to lead to, a Acquisition Proposal, and will take the terms and conditions necessary steps to inform the Persons referred to above of the Acquisition Proposal) on a current basis.obligations undertaken in this Section 6.4. -----------

Acquisition Proposal. From the date hereof until the earlier of (a) From the Closing, (b) the termination of this Agreement pursuant to Section 9.2 hereof or (c) the filing of a Chapter 11 Case (in which event the provisions of Section 5.11 shall govern), and after except as expressly permitted by the date hereoffollowing provisions of this Section 5.10, without the prior written consent Seller will not, nor will it permit any of Purchaser, the Company shall not and will cause its Subsidiaries and to, nor will it authorize or permit any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, Seller or any of its and its Subsidiaries' respective officersSubsidiaries to, directors, agents and representatives including the Financial Advisor (collectively, "Representatives") not todirectly or indirectly, (i) directly or indirectly, solicit, initiate or --------------- encourage (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making submission of any proposal which constitutes Acquisition Proposal or may reasonably be expected to lead to an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposalregarding, or (iii) provide any confidential or nonpublic information or data furnish to any Person relating person any information with respect to any Acquisition Proposal; provided, however, that nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained in this Section 5.5 or in any other provision 5.10 shall prohibit the Board of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation Directors of (but not negotiate with or provide any Seller from furnishing information to, without the Purchaser's prior written consent) or entering into discussions or negotiations with, any third party making person that makes an unsolicited bona fide written Acquisition Proposal (a "Potential Acquirer")if, ------------------ solely for and only to the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, extent that (A) such third party has submitted Acquisition Proposal constitutes a Superior Proposal, or (B) such Acquisition Proposal constitutes a Recapitalization Transaction and (C) prior to taking such action, Seller (x) provides reasonable notice to Buyer to the Company effect that it is taking such action and (y) receives from such person an executed confidentiality agreement in reasonably customary form. Prior to providing any information to or entering into discussions or negotiations with any person in connection with an Acquisition Proposal which has a reasonable likelihood by such person, Seller shall notify Buyer of resulting in a Superior any Acquisition Proposal (as defined in Section 5.5(d))including, without limitation, the material terms and (B) the failure to participate in such process would be inconsistent with the Company Board's fiduciary duties under applicable law. In the event that the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to conditions thereof and the identity of the Potential Acquirer person making it) as promptly as practicable after its receipt thereof, and the material terms shall provide Buyer with a copy of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an any written Acquisition Proposal is a Superior Proposalor amendments or supplements thereto, and shall thereafter inform Buyer on a prompt basis of the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser status of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in any discussions or negotiations (includingwith such a third party, as a part thereof, making and any counterproposal) with the Potential Acquirer. In the event that the Company shall determine material changes to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developments, discussions and negotiations (including the terms and conditions of the such Acquisition Proposal, and shall promptly give Buyer a copy of any information delivered to such person which has not previously been reviewed by Buyer. Following the commencement of a Chapter 11 Case, the solicitation and acceptance of competing offers (including Acquisition Proposals) on a current basiswill be governed by Section 5.11. Nothing in this Section 5.10 (or otherwise in this Agreement) will restrict the ability of Seller to enter into or continue discussions or negotiations, or to provide information to appropriate persons in connection with any contemplated Recapitalization Transaction.

Acquisition Proposal. (a) From Unless and after the date hereof, without the prior written consent of Purchaseruntil this Agreement shall have been terminated by either party in accordance with Article 10, the Company Seller shall not and will cause not, nor shall it permit any of its Subsidiaries and its and its Subsidiaries' respective officers, directors, agents and representatives including the Financial Advisor (collectively, "Representatives") not to, nor shall it authorize or permit any Employee, investment banker, attorney, accountant or other advisor or representative of the Seller or any of its Subsidiaries to, directly or indirectly: (i) directly or indirectly, solicit, initiate initiate, or --------------- encourage the submission of any proposal or offer from any other person or entity relating to any Acquisition Proposal; (including by way ii) cooperate with, or furnish or cause to be furnished any non-public information concerning its business, properties or assets or the business, properties or assets of furnishing information any of its Subsidiaries to, any other person or assistanceentity in connection with any Acquisition Proposal; (iii) participate in any discussions or negotiations regarding, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or which constitutes or may reasonably be expected to lead to an Acquisition Proposalto, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Proposal; provided, however, nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate or (iv) enter into any existing solicitation, initiation, encouragement, activity, discussion agreement or negotiation understanding with any Persons conducted heretofore by it other Person or its Representatives entity with the intent to effect any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewithAcquisition Proposal. Notwithstanding the foregoing and anything to the contrary foregoing, nothing contained in this Section 5.5 5.4 shall, on or in any other provision after the date of this Agreement, prohibit the Company and the Company Seller or its Board may ask questions ofof Directors, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determines, after consultation with the Financial Advisor and the Company's legal counsel, that (A) such third party has submitted to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in a Superior Proposal (as defined in Section 5.5(d)), and (B) the failure to participate in such process would be inconsistent with the Company Board's extent required by its fiduciary duties under applicable law. In law (based upon the event that advice of counsel selected by the Company shall determine to enter into the process described aboveSeller), from (1) providing information to, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity of the Potential Acquirer and the material terms of such Acquisition Proposal. If the Company, after consultation with the Financial Advisor and the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate participating in discussions or negotiations (including, as a part thereof, making with any counterproposal) Person or entity that makes an unsolicited inquiry with respect to the Potential Acquirer. In Seller if the event that the Company shall determine to provide any information to such Potential Acquirer following its determination Board of Directors reasonably believes that such Person or entity may propose an Acquisition Proposal is on terms that, for the Shareholders, are superior from a financial point of view to the terms of the transactions contemplated hereby (a "Superior Acquisition Proposal"), or (2) subject to Section 5.4(c), entering into an agreement with respect to a Superior Acquisition Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developments, discussions and negotiations (including the terms and conditions after receipt by Buyer of the Acquisition Proposal) on a current basisnotices required under Section 5.4(c).

Acquisition Proposal. (a) From and after the date hereofThe Company shall not, without the prior written consent nor shall it authorize or permit any Representative of Purchaser, the Company shall not and will cause its Subsidiaries and its and its Subsidiaries' respective officers, directors, agents and representatives including the Financial Advisor (collectively, "Representatives") not to, (i) directly or indirectlyindirectly solicit or initiate the submission of, solicit, initiate or --------------- encourage (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal, or (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposalregarding, or (iii) provide any confidential or nonpublic information or data furnish to any Person relating any information with respect to any Acquisition Proposal; provided, however, that nothing contained herein in this Section 4.4 or elsewhere in this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company Board from taking and disclosing to its shareholders a position with respect or entering into negotiations or discussions with, any Person in response to an unsolicited tender offer pursuant to Rules 14d-9 Acquisition Proposal made, submitted, or announced by such Person (and 14e-2 under the Exchange Act. The Company not withdrawn) and any such actions enumerated in this provision shall immediately cease not be considered a Breach of this Agreement if and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by it or its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in connection therewith. Notwithstanding the foregoing and anything to the contrary contained extent that each of the following conditions is satisfied: (1) the Special Committee concludes in this Section 5.5 or in any other provision of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if the Company Board or any committee thereof determinesgood faith, after consultation with the Financial Advisor and Advisor, that the Company's Acquisition Proposal is reasonably likely to lead to a Superior Offer; (2) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that (A) such third party has submitted to the Company an Acquisition Proposal which has a reasonable likelihood of resulting in a Superior Proposal (as defined in Section 5.5(d)), and (B) it is reasonably likely that the failure to participate in take such process action would be inconsistent with the Company Board's constitute a Breach of its fiduciary duties to the Company’s shareholders under applicable law. In the event that ; (3) the Company shall determine to enter into the process described above, or shall receive any Acquisition Proposal, it shall promptly inform Purchaser in writing as to the identity gives Parent written notice of the Potential Acquirer and the material terms existence of such Acquisition Proposal. If , all of the Company, after consultation with the Financial Advisor material terms and conditions of such Acquisition Proposal and the Company's legal counsel’s intention to furnish information to, determines that an Acquisition Proposal is a Superior Proposalor enter into discussions or negotiations with, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determinationPerson, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the Company Board, if pendency of the Company has complied Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; and (4) such Person executes a confidentiality agreement with the Company. Subject to the foregoing provisions of this Section 5.54.4, may participate in discussions or negotiations (including, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall, and shall determine to provide any information to such Potential Acquirer following cause its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep the Purchaser apprised of any related developmentsRepresentatives to, cease immediately all existing activities, discussions and negotiations (including with Persons other than Parent regarding any proposal that constitutes, or which the terms Company reasonably believes would lead to an Acquisition Proposal, and conditions will take the necessary steps to inform the Persons referred to above of the Acquisition Proposal) on a current basisobligations undertaken in this Section 4.4.