Common use of Alternative Proposals Clause in Contracts

Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior to the Effective Date, the The Company agrees (a) that that, between the date hereof and the earlier of the Effective Time or the termination of this Agreement in accordance with Article 8, neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the "Representatives") not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (other than pursuant to outstanding Options, Warrants and Purchase Rights) of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above such parties of the obligations undertaken in this Section 8.96.1; and (c) that it will notify Parent Purchaser immediately of the identity of the potential acquiror and the terms of such person's or entity's proposal if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itthe Company; provided, however, that nothing contained in this Section 8.9 6.1 shall prohibit the Board of Directors of Company or its Subsidiaries or its Representatives, upon approval by the Company Board, from (i) prior to the acceptance for payment of shares of Common Stock by Merger Sub pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their agents in violation of Directors of this Section 6.1 or the Company determines in good faith that such action is required for letter, dated May 27, 1999, from Wonderware Corporation to the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawCompany, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent proposal is not subject to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions receipt of any such discussions or negotiations (including identities of parties); and (ii) to necessary financing, unless the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.Board has determined

Alternative Proposals. (a) Prior to the Effective DateTime, the Company agrees (ai) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their its Subsidiaries' respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit solicit, encourage or encouragetake any other action to facilitate, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (includingthat constitutes, without limitationor may reasonably be expected to lead to, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries Alternative Proposal (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"defined below) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (bii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (ciii) that it will notify Parent immediately Wats▇▇ ▇▇▇ediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of the Company may, in response to any unsolicited written bona-fide proposal from a third party regarding a Superior Proposal (i) furnishing as defined below), furnish or cause to be furnished information to or entering into to, and engage in discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a mergersuch third party, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and but only to the extent that, if (Av) the Board of Directors of the Company determines in good faith that faith, after consultation with its independent financial and legal advisors to take such action is required for pursuant to the Board exercise of Directors to comply with its fiduciary duties under applicable law; (w) prior to stockholders imposed by lawfurnishing such information to, or entering into discussions or negotiations with such third party, the Company receives from such third party an executed confidentiality agreement with terms no less favorable than those contained in the Confidentiality Agreement (Bas defined herein); (x) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entitythird party, the Company provides written 37 43 notice to Parent to Wats▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and third party; (Cy) the Company keeps Parent promptly informed provides to Wats▇▇ ▇▇▇ of the status relevant details relating to all inquiries and all proposals that the Company may receive relating to any of such matters (including the identity of the Person making such inquiry or proposal and the material terms and conditions of any such discussions or negotiations (including identities proposal) and provides Wats▇▇ ▇▇▇h copies of parties)all materials delivered to such Person; and (iiz) the Company keeps Wats▇▇ ▇▇▇ormed of the status of any such discussions or negotiations. Notwithstanding anything to the extent applicablecontrary contained in this Section 5.1, complying with Rule 14e-2 promulgated under in response to the Exchange Act with regard to Company's or its agent's receipt of an unsolicited written bona-fide proposal from any Person regarding an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation its agents may make inquiries to such Person and its agents to clarify questions relating to ambiguities of the Company under this Agreement.terms of such proposal

Alternative Proposals. Prior to the Effective Date, the The Company agrees (a) that that, between the date hereof and the consummation of the Offer, neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, managing directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, "Representatives") not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersshareholders), (i) with respect to a merger, acquisition, consolidation consolidation, recapitalization, business combination or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative ProposalProposal or any agreement or arrangement requiring the Company to abandon, terminate or delay the consummation of the Offer or other transactions contemplated by this Agreement; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above such parties of the obligations undertaken in this Section 8.95.1; and (c) that it will notify Parent immediately Purchaser promptly of the identity of the potential acquiror and the terms of such Person's proposal if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itthe Company; provided, however, that nothing contained in this Section 8.9 5.1 shall prohibit the Company's Supervisory Board or Board of Directors of the Company Management from (i) prior to the acceptance for payment of Common Shares by Offer Sub pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person or entity Person that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their Representatives in violation of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawthis Section 5.1, (B) if each Board determines in good faith, after receiving the advice of its outside advisors, including outside counsel and others, (i) that such Alternative Proposal is more favorable from a financial point of view as compared to the Offer and (ii) failure to furnish such information or enter into such discussions or negotiations with such Person would violate the Boards' fiduciary duties, (C) the Boards of the Company determine in good faith in the exercise of reasonable business judgment that such proposal is likely to be successfully financed if accepted by shareholders, and (D) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company enters into a confidentiality agreement with the Person or entity with terms no less favorable to the Company than the Confidentiality Agreement between Parent and the Company and provides written 37 43 notice to Parent Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Person. The Company keeps Parent promptly shall keep Purchaser reasonably informed of the status and all material terms and conditions of any such discussions or negotiations (including identities the identity of partiessuch Person and the terms of any proposal); and (ii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act or with applicable Dutch Law with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 6 hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior to the Effective DateTime, the Company agrees --------------------- agrees (a) that neither it nor any of its Subsidiaries subsidiaries shall, and nor shall it and they shall direct and use or any of its and their best efforts to cause its and subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, accountant or attorney or accountant retained by it or any of its Subsidiariessubsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to for a merger, acquisition, consolidation merger or similar transaction involvingother business combination involving the Company or for the acquisition of, or any purchase the acquisition of a controlling equity interest in, or all or any significant a substantial portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations -------------------- concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal, other than as contemplated by this Agreement; and (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify Parent SmarTalk immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing -------- ------- contained in this Section 8.9 6.4 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionAlternative Proposal, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the written advice of outside counsel, determines in good faith by a majority vote that such action is required appropriate for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawlaw and such proposal is, in the written advice of ▇▇▇▇▇▇▇, Baring & Co., Incorporated, more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent the SmarTalk to the effect that it is furnishing information to, or entering into discussions discussion or negotiations with, such person or entity entity, and (C) the Company keeps Parent promptly SmarTalk informed of the status and all material terms and conditions of information with respect to any such discussions or negotiations (including identities of parties)negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 section 6.4 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 10 hereof), (y) permit the Company to enter into any an agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this agreement. From and after the execution of this Agreement, the Company shall immediately advise SmarTalk in writing of the receipt, directly or indirectly, of any inquiries or proposals relating to an Alternative Proposal and furnish to SmarTalk either a copy of any such proposal or a written summary of any such proposal.

Alternative Proposals. Prior (a) Subject to the provisions of this Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it shall cause its officers and they directors not to, and shall direct and use its and their reasonable best efforts to cause its and their respective officers, directors, its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (includingcollectively with officers and directors of the Company, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries“Representatives”) not to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect lead to a merger, acquisition, consolidation consolidation, tender offer, exchange offer or similar transaction involving, or any proposal or offer to purchase of all or acquire in any significant portion manner (A) assets representing 10% or more of the assets or any equity securities of, of the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any of its Subsidiaries other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"“A▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”), (▇▇) enter into, participate, continue or otherwise engage in any discussions or negotiations concerningwith, or provide any confidential non-public information or data toto any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or have the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any discussions withAcquisition Proposal, (iii) approve, endorse or recommend any person Acquisition Proposal or (iv) enter into or approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to an Alternative Acquisition Proposal. The Company shall immediately terminate, and shall cause its Representatives to immediately terminate, all discussions or release negotiations, if any, that are ongoing as of the date hereof with any third party from any obligations under any existing standstill agreement or arrangement relating with respect to any Alternative an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; . (b) Subject to the provisions of this Section 8.4, the Company may (A) provide information in response to a request by a Person who has made a bona fide written Acquisition Proposal that it will immediately cease and cause to be terminated any existing activities, was not initiated or solicited in violation of Section 8.4(a) if the Company receives from the Person so requesting the information an executed confidentiality agreement that is customary for transactions of the type of the Acquisition Proposal; and/or (B) engage in discussions or negotiations with any parties conducted heretofore Person who has made a bona fide written Acquisition Proposal that was not initiated or solicited in violation of Section 8.4(a), if, in the case of each of clauses (A) and (B), the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that failure to take this action would be inconsistent with its fiduciary duties under applicable Law and if the Company Board determines in good faith that the Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal. As used in this Agreement, “Superior Proposal” means a bona fide Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) is reasonably expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the Acquisition Proposal, and if consummated, would result in a transaction that is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (after taking into account any revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements agreed to by the Purchaser pursuant to Section 8.4(c)), where the Company Board has concluded, in good faith after consultation with its financial advisors and outside legal counsel, that the failure of the Company Board to identify such proposal as a Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; provided, that for purposes of the definition of “Superior Proposal,” references to 10% in the definition of Acquisition Proposal shall be deemed to be references to “28%.” (c) The Company shall notify the Purchaser orally and in writing promptly, and in any event within three (3) Business Days, after receipt of any Acquisition Proposal. The written notice shall include the identity of the third party making such Acquisition Proposal, the material terms of the Acquisition Proposal and copies of any written communications and documents setting forth the material terms of such Acquisition Proposal received by the Company from the third party making such Acquisition Proposal or its Representatives or Affiliates, and the Company shall keep the Purchaser reasonably informed of any material changes with respect to such Acquisition Proposal on a prompt basis (and in any event within 24 hours). The Company shall promptly notify the Purchaser orally and in writing upon determination by the Company Board, after consultation with its financial advisors and outside legal counsel, that an Acquisition Proposal is a Superior Proposal. The Company shall not effect a change in the Company Recommendation (whether relating to a Superior Proposal or otherwise) until after the fifth Business Day following the Purchaser’s receipt of written notice (a “Change in Recommendation Notice”) from the Company (i) with respect to a change in the Company Recommendation as a result of the foregoingSuperior Proposal, advising the Purchaser that the Company Board has received a Superior Proposal, specifying the terms and conditions of the Superior Proposal and stating that the Company Board intends to effect a Change in Recommendation and (ii) with respect to a change in the Company Recommendation not relating to a Superior Proposal, specifying in reasonable detail the Intervening Event precipitating the Change in Recommendation and the reason for such change in Company Recommendation. The Company agrees that after providing the Purchaser a Change in Recommendation Notice, during the five-Business Day period specified in the preceding sentence (such period, the “Purchaser Review Period”), the Purchaser will be permitted to propose to the Company revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements, and it will take the necessary steps Company and its Representatives will, if requested by the Purchaser, negotiate in good faith with the Purchaser and its Representatives regarding any revisions to inform the individuals or entities referred to above terms of the obligations undertaken transactions contemplated by this Agreement and the other Operative Agreements proposed by the Purchaser. (d) Nothing contained in this Section 8.9; 8.4 shall prohibit the Company or the Company Board from taking and (cdisclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) that it will notify Parent immediately if any promulgated under the Exchange Act or from making such inquiries or proposals are received bydisclosure to the Company’s stockholders which, any such information in the judgment of the Company Board after receiving advice of outside legal counsel, is requested from, or any such negotiations or discussions are sought reasonably likely to be initiated or continued with, itrequired under applicable Law. (e) The Purchaser agrees that the provisions of Section 2.5 of the Governance Agreement shall not restrict the Company Board’s consideration of any matter pursuant to this Section 8.4; provided, however, that nothing contained in this the Company may not consummate a transaction prohibited by Section 8.9 shall prohibit the Board of Directors 2.5 of the Governance Agreement without the prior written consent of the Purchaser. (f) If Purchaser or an Affiliate of Purchaser commences a tender offer to acquire Common Stock up to the Share Cap when permitted to do so by, and in accordance with, Section 8.17 below, the Company from or the Company Board will recommend that stockholders tender their shares of Common Stock pursuant to such offer, and take all actions to support such offer reasonably requested by Purchaser, provided that (i) furnishing information to the purchase price per share of Common Stock offered in such offer is at or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire above the Company pursuant to a merger, consolidation, share exchange, purchase price of a substantial portion of assets, business combination or other similar transaction, if, and only the Common Stock on the trading day immediately prior to the extent that, (A) the Board commencement of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, offer or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except tender offer is styled as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreementa “Dutch auction”.

Alternative Proposals. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit initiate or encouragesolicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersStockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.95.1; and (c) that it will notify Parent the other immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.9 5.1 shall prohibit the Board of Directors of the Company from (iA) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (Ai) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, ; (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to Wats▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity; and (Ciii) subject to any confidentiality agreement with such person or entity (which the Company determined in good faith was required to be executed in order for its Board of Directors to comply with its fiduciary duties to stockholders imposed by law), the Company keeps Parent promptly informed Wats▇▇ ▇▇▇ormed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)negotiations; and (iiB) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), ; (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.shall

Alternative Proposals. Prior to From the Effective DateDate until the Closing of the transactions contemplated by, the Company or termination of, this Agreement, each of Seller and UCH agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it and they each shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any either of its Subsidiariesthem) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersboard of directors) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, or membership interests of the Company or any of its Subsidiaries Hospital (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "“Alternative Proposal") ”), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9Section; and (c) that it will notify Parent Buyer immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, provided that nothing contained in this Section 8.9 shall prohibit the Board board of Directors directors, trustees or governors of the Company Seller or UCH from (i) furnishing information to or entering into discussions or negotiations with, any person or entity Person that makes or proposes to make an unsolicited bona fide proposal to acquire the Company Hospital pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, if and only to the extent that, that (A) the Board relevant board of Directors of the Company directors, trustees or governors determines in good faith that such action is required for the Board of Directors board to comply with its fiduciary duties to stockholders imposed by law, ; (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person, Seller or entity, the Company UCH provides written 37 43 notice to Parent Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity Person, and (C) the Company subject to any confidentiality agreement with such Person (which Seller or UCH determined in good faith was required to be executed in order for its board to comply with fiduciary duties imposed by law), Seller or UCH keeps Parent promptly Buyer informed of the status and all material terms and conditions (not the terms) of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposalnegotiations. Nothing in this Section 8.9 shall (x) permit the Company Seller or UCH to terminate this Agreement (except as specifically provided in Article X hereof11), ; (y) permit the Company Seller or UCH to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company Seller and UCH shall not enter into any agreement with any person Person that provides for, for or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company Seller or UCH under this Agreement.

Alternative Proposals. Upon execution of this Agreement, the --------------------- Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shallwill, and nor will it and they shall direct and use or any of its and their best efforts to cause its and Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (includingas defined below) or, without limitationexcept as set forth below, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; . An "Alternative Proposal" means, other than the transactions contemplated hereby and by the Stock Agreement, the receipt by the Company of any inquiries or the making or implementation of any proposal or offer (bincluding without limitation any proposal or offer to its stockholders) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to a merger, acquisition, consolidation or similar transaction involving any purchase of all or any significant portion of the assets of the Company or any of its Subsidiaries or a 10% or more equity interest in the Company by a person or entity that takes a position detrimental to the Merger. Notwithstanding the foregoing, and it will take in the necessary steps event the Company receives an unsolicited written proposal or written offer with respect to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify Parent immediately if any such inquiries or proposals are received byan Alternative Proposal, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of the Company from shall be entitled, solely to the extent it has been advised (i) furnishing by its outside counsel that a failure to do so would violate its fiduciary obligations under applicable law and (ii) by its financial advisor that the Alternative Proposal is financially superior to the Merger and the transactions contemplated thereby, to review and participate in negotiations concerning such proposal and furnish relevant information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire concerning the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, offeror; provided that (A) the Company shall have furnished, or concurrently with the provision of such information to such offeror shall furnish, Parent with all such information provided to such offeror and (B) the offeror executes a confidentiality agreement with the Company on substantially the same terms as that entered into with Parent. The Company shall notify Parent promptly of any such unsolicited Alternative Proposal, or any inquiry or contact with any person with respect thereto. In addition, in the event the Company (i) enters into negotiations with respect to an unsolicited Alternative Proposal or (ii) the Company's Board of Directors shall withdraw its approval of this Agreement and the transactions contemplated hereby or its recommendation to the stockholders of the Company determines in good faith that such action is required for to approve the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawsame, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, then the Company provides written 37 43 shall immediately deliver an additional notice of such events to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative ProposalParent. Nothing in this Section 8.9 shall 6.1 will (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof)Agreement, (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall will not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior (a) Subject to the provisions of this Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it shall cause its officers and they directors not to, and shall direct and use its and their reasonable best efforts to cause its and their respective officers, directors, its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (includingcollectively with officers and directors of the Company, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries“Representatives”) not to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect lead to a merger, acquisition, consolidation consolidation, tender offer, exchange offer or similar transaction involving, or any proposal or offer to purchase of all or acquire in any significant portion manner (A) assets representing 10% or more of the assets or any equity securities of, of the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any of its Subsidiaries other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative “Acquisition Proposal"”), (ii) enter into, participate, continue or otherwise engage in any discussions or negotiations concerningwith, or provide any confidential non-public information or data toto any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or have the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any discussions withAcquisition Proposal, (iii) approve, endorse or recommend any person Acquisition Proposal or (iv) enter into or approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to an Alternative Acquisition Proposal. The Company shall immediately terminate, and shall cause its Representatives to immediately terminate, all discussions or release negotiations, if any, that are ongoing as of the date hereof with any third party from any obligations under any existing standstill agreement or arrangement relating with respect to any Alternative an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; . (b) Subject to the provisions of this Section 8.4, the Company may (A) provide information in response to a request by a Person who has made a bona fide written Acquisition Proposal that it will immediately cease and cause to be terminated any existing activities, was not initiated or solicited in violation of Section 8.4(a) if the Company receives from the Person so requesting the information an executed confidentiality agreement that is customary for transactions of the type of the Acquisition Proposal; and/or (B) engage in discussions or negotiations with any parties conducted heretofore Person who has made a bona fide written Acquisition Proposal that was not initiated or solicited in violation of Section 8.4(a), if, in the case of each of clauses (A) and (B), the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that failure to take this action would be inconsistent with its fiduciary duties under applicable Law and if the Company Board determines in good faith that the Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal. As used in this Agreement, “Superior Proposal” means a bona fide Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) is reasonably expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the Acquisition Proposal, and if consummated, would result in a transaction that is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (after taking into account any revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements agreed to by the Purchaser pursuant to Section 8.4(c)), where the Company Board has concluded, in good faith after consultation with its financial advisors and outside legal counsel, that the failure of the Company Board to identify such proposal as a Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; provided, that for purposes of the definition of “Superior Proposal,” references to 10% in the definition of Acquisition Proposal shall be deemed to be references to “28%.” (c) The Company shall notify the Purchaser orally and in writing promptly, and in any event within three (3) Business Days, after receipt of any Acquisition Proposal. The written notice shall include the identity of the third party making such Acquisition Proposal, the material terms of the Acquisition Proposal and copies of any written communications and documents setting forth the material terms of such Acquisition Proposal received by the Company from the third party making such Acquisition Proposal or its Representatives or Affiliates, and the Company shall keep the Purchaser reasonably informed of any material changes with respect to such Acquisition Proposal on a prompt basis (and in any event within 24 hours). The Company shall promptly notify the Purchaser orally and in writing upon determination by the Company Board, after consultation with its financial advisors and outside legal counsel, that an Acquisition Proposal is a Superior Proposal. The Company shall not effect a change in the Company Recommendation (whether relating to a Superior Proposal or otherwise) until after the fifth Business Day following the Purchaser’s receipt of written notice (a “Change in Recommendation Notice”) from the Company (i) with respect to a change in the Company Recommendation as a result of the foregoingSuperior Proposal, advising the Purchaser that the Company Board has received a Superior Proposal, specifying the terms and conditions of the Superior Proposal and stating that the Company Board intends to effect a Change in Recommendation and (ii) with respect to a change in the Company Recommendation not relating to a Superior Proposal, specifying in reasonable detail the Intervening Event precipitating the Change in Recommendation and the reason for such change in Company Recommendation. The Company agrees that after providing the Purchaser a Change in Recommendation Notice, during the five-Business Day period specified in the preceding sentence (such period, the “Purchaser Review Period”), the Purchaser will be permitted to propose to the Company revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements, and it will take the necessary steps Company and its Representatives will, if requested by the Purchaser, negotiate in good faith with the Purchaser and its Representatives regarding any revisions to inform the individuals or entities referred to above terms of the obligations undertaken transactions contemplated by this Agreement and the other Operative Agreements proposed by the Purchaser. (d) Nothing contained in this Section 8.9; 8.4 shall prohibit the Company or the Company Board from taking and (cdisclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) that it will notify Parent immediately if any promulgated under the Exchange Act or from making such inquiries or proposals are received bydisclosure to the Company’s stockholders which, any such information in the judgment of the Company Board after receiving advice of outside legal counsel, is requested from, or any such negotiations or discussions are sought reasonably likely to be initiated or continued with, itrequired under applicable Law. (e) The Purchaser agrees that the provisions of Section 2.5 of the Governance Agreement shall not restrict the Company Board’s consideration of any matter pursuant to this Section 8.4; provided, however, that nothing contained in this the Company may not consummate a transaction prohibited by Section 8.9 shall prohibit the Board of Directors 2.5 of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire Governance Agreement without the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors prior written consent of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this AgreementPurchaser.

Alternative Proposals. Prior to the Effective DateTime, the --------------------- Company agrees (a) that that, neither it shall, nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officersemployees, directors, employeesrepresentatives, agents and representatives affiliates or advisors (including, without limitation, any legal, accounting, financial and investment banker, attorney or accountant retained by it or any of its Subsidiariesbanking advisors) not to, will (i) initiate, solicit solicit, encourage or encouragetake any other action to facilitate, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (includingthat constitutes, without limitationor may reasonably be expected to lead to, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") Proposal or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; , (bii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties person conducted heretofore with respect to any of the foregoing, and it will take provided, -------- however, that the necessary steps Company shall not initiate communications (whether orally or ------- in writing) in any manner with ▇▇▇▇.▇▇▇ prior to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; Effective Time, and (ciii) that it will notify Parent Petopia immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued withwith the Company. Notwithstanding the foregoing, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of if the Company or any of its employees or agents receives an unsolicited call or written information from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii▇▇▇▇.▇▇▇) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard relating to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company and/or its employees shall not enter into be entitled to inform such person that they are unable to talk to them at this time. As used herein, the term "Alternative Proposal" means -------------------- (i) a merger, consolidation or other business combination with the Company, or any agreement with or letter of intent or understanding relating to any such transaction, (ii) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition involving a substantial part of the Company's assets, or any agreement or letter of intent or understanding relating to such transaction, (iii) the acquisition by any person that provides for, of 25% or in any way facilitates, an Alternative Proposal)more of the outstanding capital stock or capital stock equivalents of the Company, or (ziv) affect any other obligation reclassification of securities or recapitalization of the Company under this Agreementor other transaction that has the effect, directly or indirectly, of increasing the proportionate share of any class of equity security (including securities convertible into equity securities) of the Company that is owned by any person, or any agreement or letter of intent or understanding relating to such transaction.

Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause it and its and their respective Subsidiaries' officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion substantially all of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.99.6; and (c) that it will notify Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; it or any of its Subsidiaries: provided, however, that nothing contained in this Section 8.9 9.6 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith (after consultation with and based on advice of its outside legal counsel) that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, (i) the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (ii) the Company and such person or entity enter into an appropriate confidentiality agreement with respect to information to be supplied by the Company and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)) and, if any such proposal or inquiry is in writing, furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt thereof; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 9.6 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X XI hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior to From and after the Effective date hereof and continuing thereafter until the earlier of the termination of this Agreement or the Closing Date, the Company agrees Parent and Seller agree (a) that neither it nor any of its Subsidiaries shallthey shall not, and it and they shall direct and use its cause the Company, the Company's Subsidiaries and their best efforts to cause its Parent's, Seller's, the Company's and their the Company's Subsidiaries' respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it Parent, Seller, the Company or any of its the Company's Subsidiaries) not to, initiate, solicit initiate or encouragesolicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.94.1; and (c) that it will notify Parent immediately Wats▇▇ ▇▇▇mptly if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.