Common use of Transaction Proposals Clause in Contracts

Transaction Proposals. Prior to the termination of this Agreement, the Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), and shall not authorize or permit any of its officers, directors, agents, representatives or advisors to (a) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) relating to (i) any acquisition or purchase of over 20% of the consolidated assets of the Company or of over 20% of any class of equity securities of the Company, (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Company, or (iii) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company other than the transactions contemplated by this Agreement (collectively, "TRANSACTION PROPOSALS"), (b) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding a Transaction Proposal, or furnish to any Person (other than Parent, Merger Sub or any of their representatives) any information with respect to its business, properties or assets in connection with a Transaction Proposal; PROVIDED, HOWEVER, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through advisors, agents or other intermediaries) from (A) furnishing information pursuant to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than the terms of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions or negotiations with such third party, (C) following receipt of a bona fide Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third party.

Transaction Proposals. Prior to From the date hereof until the Closing Date (or the earlier termination of this Agreement), the Company Shareholders, the Majority Stakeholders and the Seller shall not (whether directly or indirectly through advisors, agents or other intermediaries)not, and the Seller shall not authorize or permit any of its officers, directors, agentsconsultants or employees, representatives or advisors to any of its agents to, directly or indirectly (ai) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) relating to (i) any acquisition or purchase of over 20% of the consolidated assets of the Company or of over 20% of any class of equity securities of the CompanyTransaction Proposals, (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Company, or (iii) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company other than the transactions contemplated by this Agreement (collectively, "TRANSACTION PROPOSALS"), (b) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding a any Transaction Proposal, Proposal or furnish information about the Seller to any Person (other than Parent, Merger Sub or any of their representatives) any information with respect to its business, properties or assets in connection with a Transaction Proposal; PROVIDED, HOWEVER, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through advisors, agents or other intermediaries) from (A) furnishing information pursuant to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than the terms of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions or negotiations with such third party, (C) following receipt of a bona fide Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal except to the Majority Stakeholders, the Company or its representatives, (iii) otherwise cooperate in any way with any effort or attempt by any other Person to make or enter into a Transaction Proposal, or (iv) accept, approve or authorize, or enter into any agreement concerning any Transaction Proposal; provided, however, that the Seller and its directors and officers will remain free to participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any unsolicited effort or attempt by any person to do or seek any of the foregoing in clauses (ii), (iii) or (iv) to the extent their fiduciary duties under Delaware law may require; provided, further, that if the Seller consummates a transaction with a party other than Parent, Merger Sub or their representatives, and shall, upon consummation the Company as a result of the OfferSeller's Board of Directors exercise of its fiduciary duties as contemplated above, use its reasonable best efforts the Seller shall pay to cause any such other party in possession of confidential information about the Company a break-up fee of $500,000. The Seller shall cause its agents, officers, directors, representatives and Affiliates to abide by the terms of this Section 6.5. The Seller's remedy for any breach of this Section 6.5 shall be specific performance. In the event that was furnished by the Seller receives or on behalf of the Company to return or destroy all such information in the possession becomes aware of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, in connection with a possible Transaction Proposal, refer it shall promptly notify the Company in writing of such communication and keep the Company informed of any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third partysubsequent developments in connection therewith.

Transaction Proposals. Prior to From the date hereof until the Closing Date (or the earlier termination of this Agreement), the Company Sellers shall not (whether directly authorize, encourage or indirectly through advisors, agents or other intermediaries), and shall not authorize or permit direct any of its their respective officers, directors, agentsconsultants, employees, shareholders, Affiliates (over which they exercise control), investment bankers, attorneys, advisors, auditors, representatives or advisors to agents to, directly or indirectly, (ai) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) group of Persons relating to (i) any acquisition or purchase of over 20% of assets of, or any equity interest in, any Seller, the consolidated assets of Business or the Company Assets or of over 20% of any class of equity securities of the Company, (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Companyoffer, or (iii) any merger, consolidation, business combination, sale of substantially all assetsrecapitalization, recapitalizationrestructuring, spin-off, liquidation, dissolution or similar transaction involving involving, directly or indirectly, any Seller, the Company other than Business or the transactions contemplated by this Agreement Assets (collectively, each a "TRANSACTION PROPOSALSTransaction Proposal"), (bii) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding any Transaction Proposal or furnish information about any Seller, the Business or the Assets to any Person except to (x) lenders and other parties to agreements with any Seller (for the specific purpose set forth in such agreements, which in no event shall include a Transaction Proposal) and (y) Purchaser or its representatives, (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or enter into a Transaction Proposal, or furnish (iv) accept, approve or authorize, or enter into any agreement concerning any Transaction Proposal or dispose of any equity interest in any Seller, the Business or the Assets. The Sellers shall use their respective Best Efforts to any Person (other than Parentcause their shareholders, Merger Sub or any of their representatives) any information with respect to its businessAffiliates, properties or assets in connection with a Transaction Proposal; PROVIDEDagents, HOWEVERofficers, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through directors, investment bankers, advisors, agents or other intermediaries) from (A) furnishing information pursuant representatives and Affiliates to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than abide by the terms of this Section 6.7. In the Confidentiality Agreement, event that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions any Seller receives or negotiations with such third party, (C) following receipt becomes aware of a bona fide any Transaction Proposal, taking it shall promptly notify Purchaser in writing of such communication and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions keep Purchaser informed of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, subsequent developments in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third partytherewith.

Transaction Proposals. Prior to From the date hereof until the Closing Date (or the earlier termination of this Agreement, the Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), and none of the Sellers shall not authorize or permit any of its officers, directors, agentsconsultants, employees, shareholders, Affiliates, investment bankers, attorneys, advisors, auditors, representatives or advisors to agents to, directly or indirectly, (ai) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) group of Persons relating to (i) any acquisition or purchase of over 20% any assets of, or any equity interest in, any of the consolidated assets of the Company Sellers, or of over 20% of any class of equity securities of the Company, (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Companyoffer, or (iii) any merger, consolidation, business combination, sale of substantially all assetsrecapitalization, recapitalizationrestructuring, spin-off, liquidation, dissolution or similar transaction involving involving, directly or indirectly, any of the Company Sellers, or any of their respective assets, other than the transactions contemplated by this Agreement (collectively, each a "TRANSACTION PROPOSALSTransaction Proposal"), (bii) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding any Transaction Proposal or furnish information about any of the Sellers to any Person except to (x) lenders and other parties to agreements with any of the Sellers (for the specific purpose set forth in such agreements, which in no event shall include a Transaction Proposal) and (y) Purchaser or its representatives, (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or enter into a Transaction Proposal, or furnish to (iv) accept, approve or authorize, or enter into any Person (other than Parent, Merger Sub agreement concerning any Transaction Proposal or dispose of any equity interest in any of the Sellers. The Sellers shall, as applicable, use their representatives) any information with respect respective Best Efforts to its businesscause their respective shareholders, properties or assets in connection with a Transaction Proposal; PROVIDEDAffiliates, HOWEVERagents, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through officers, directors, investment bankers, advisors, agents or other intermediaries) from (A) furnishing information pursuant representatives and Affiliates to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than abide by the terms of this Section 5.7. In the Confidentiality Agreement, event that any of the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions Sellers receives or negotiations with such third party, (C) following receipt becomes aware of a bona fide any Transaction Proposal, taking it shall promptly notify Purchaser in writing of such communication and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions keep Purchaser informed of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, subsequent developments in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third partytherewith.

Transaction Proposals. Prior to From the date hereof until the Closing Date (or the earlier termination of this Agreement), the Shareholders and the Company shall not, and the Company shall not (whether directly or indirectly through advisors, agents or other intermediaries)permit any of its Subsidiaries to, and neither the Shareholders nor the Company shall not authorize or permit any of its their respective officers, directors, agentsconsultants or employees, or any of their respective investment bankers, attorneys, advisors, auditors, representatives or advisors to agents to, directly or indirectly, (ai) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) group relating to (i) any acquisition or purchase of over 20% of the consolidated assets of of, or any equity interest in, the Company or any of over 20% of any class of equity securities of the Company, (ii) its Subsidiaries or any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Companyoffer, or (iii) any merger, consolidation, business combination, sale of substantially all assetsrecapitalization, recapitalizationrestructuring, spin-off, liquidation, dissolution or similar transaction involving involving, directly or indirectly, the Company other than the transactions contemplated by this Agreement or any of its Subsidiaries (collectively, each a "TRANSACTION PROPOSALSTransaction Proposal"), (bii) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding any Transaction Proposal or furnish information about the Company to any Person except to (x) lenders and other parties to agreements with the Company and its Subsidiaries (for the specific purpose set forth in such agreements, which in no event shall include a Transaction Proposal) and (y) Buyer or MergerSub or their representatives, (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or enter into a Transaction Proposal, or furnish to (iv) accept, approve or authorize, or enter into any Person (other than Parent, Merger Sub agreement concerning any Transaction Proposal or dispose of any equity interest in the Company or any of their representatives) any information with respect to its business, properties or assets in connection with a Transaction Proposal; PROVIDED, HOWEVER, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through advisors, agents or other intermediaries) from (A) furnishing information pursuant to appropriate terms of confidentiality concerning the Subsidiaries. The Company and its businessthe Shareholders shall cause their agents, properties or assets officers, directors, representatives and Affiliates to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than abide by the terms of this Section 5.7. In the Confidentiality Agreement, event that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions Company or negotiations with such third party, (C) following receipt any Shareholder receives or becomes aware of a bona fide any Transaction Proposal, taking it shall promptly notify Buyer in writing of such communication and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions keep Buyer informed of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, subsequent developments in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third partytherewith.

Transaction Proposals. Prior (a) Subject to Section 8.02(d), the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative of, the Company or any of its Subsidiaries to, (i) solicit or initiate, or encourage (including by furnishing non-public information) the submission of, any Transaction Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal; provided, however, that prior to the termination Company Meeting, in response to an unsolicited written bona fide Transaction Proposal that in the good faith opinion of the Board of Directors of the Company could reasonably be expected to result in a Superior Proposal (as defined below), if the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that failure to do so could reasonably be expected to result in a breach of its fiduciary duties to stockholders under applicable law, the Company may, subject to compliance with Section 8.02(c), (A) furnish information with respect to the Company to such Person making such proposal pursuant to a customary confidentiality and standstill agreement with such Person and (B) participate in negotiations regarding such Transaction Proposal. For purposes of this Agreement, the Company shall not (whether directly "Transaction Proposal" means any inquiry, proposal or indirectly through advisors, agents or other intermediaries), and shall not authorize or permit any of its officers, directors, agents, representatives or advisors to (a) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers offer from any Person (other than Merger Sub or Parent) relating to (ix) any purchase or other acquisition from the Company of assets representing 25% or purchase of over 20% more of the consolidated assets net revenues, net income or profits of the Company and its Subsidiaries, taken as a whole, (y) any purchase or other acquisition of over 2010% or more of any class of equity securities of the Company, (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities Equity Securities of the Company, or (iiiz) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company (or any Subsidiary whose business constitutes 25% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole), in each case other than the transactions contemplated by this Agreement (collectively, "TRANSACTION PROPOSALS"), (b) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding a Transaction Proposal, or furnish to any Person (other than Parent, Merger Sub or any of their representatives) any information with respect to its business, properties or assets in connection with a Transaction Proposal; PROVIDED, HOWEVER, that nothing in this Agreement shall prohibit Agreement. Immediately after the Company (either directly or indirectly through advisors, agents or other intermediaries) from (A) furnishing information pursuant to appropriate terms of confidentiality concerning the Company execution and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than the terms of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) , (B) engaging in discussions or negotiations with such third party, (C) following receipt of a bona fide Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution delivery of this Agreement, the Company shall immediately will, and will cause its Subsidiaries and Affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and cause its advisors, agents and other intermediaries to cease terminate any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third party.

Transaction Proposals. Prior to From the date hereof until the Closing Date (or the earlier termination of this Agreement), neither any Seller, the Company nor the Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), and shall not authorize or permit any of its officers, directors, agentsconsultants, employees, shareholders, Affiliates, investment bankers, attorneys, advisors, auditors, representatives or advisors to agents to, directly or indirectly, (ai) solicit, initiate or knowingly encourage or facilitate the submission of inquiries, proposals or offers from any Person (other than Merger Sub or Parent) group of Persons relating to (i) any acquisition or purchase of over 20% of the consolidated assets of any Assets of, or any equity interest in, the Company or of over 20% of any class of equity securities of the CompanySubsidiaries, (ii) or any tender offer (including a self tender offer) or exchange offer that if consummated would result in any third party beneficially owning over 20% of any class of equity securities of the Companyoffer, or (iii) any merger, consolidation, business combination, sale of substantially all assetsrecapitalization, recapitalizationrestructuring, spin-off, liquidation, dissolution or similar transaction involving involving, directly or indirectly, the Company other than or any of the transactions contemplated by this Agreement Subsidiaries, (collectively, each a "TRANSACTION PROPOSALSTransaction Proposal"), (bii) agree to or recommend to its stockholders any Transaction Proposal, or (c) enter into or participate in any discussions or negotiations regarding any Transaction Proposal or furnish information about the Company or any of the Subsidiaries to any Person except to (x) lenders and other parties to agreements with the Company or any of the Subsidiaries (for the specific purpose set forth in such agreements, which in no event shall include a Transaction Proposal) and (y) Purchaser or its representatives, (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to make or enter into a Transaction Proposal, or furnish to (iv) accept, approve or authorize, or enter into any Person (other than Parent, Merger Sub agreement concerning any Transaction Proposal or dispose of any equity interest in the Company or any of the Subsidiaries. The Company, the Subsidiaries and each Seller shall, as applicable, cause their representatives) any information with respect to its businessrespective shareholders, properties or assets in connection with a Transaction Proposal; PROVIDEDAffiliates, HOWEVERagents, that nothing in this Agreement shall prohibit the Company (either directly or indirectly through officers, directors, investment bankers, advisors, agents or other intermediaries) from (A) furnishing information pursuant representatives and Affiliates to appropriate terms of confidentiality concerning the Company and its business, properties or assets to a third party who has indicated an interest in making a bona fide Transaction Proposal (provided, that if such confidentiality terms are less favorable to the Company in any material respect than abide by the terms of this Section 4.6. In the Confidentiality Agreement, event that the Confidentiality Agreement shall be deemed amended to provide for such more favorable confidentiality terms) Company, (B) engaging in discussions any of the Subsidiaries or negotiations with such third party, (C) following receipt any Seller receives or becomes aware of a bona fide any Transaction Proposal, taking it shall promptly notify Purchaser in writing of such communication and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (D) following receipt of a bona fide Transaction Proposal, failing to make or withdrawing or modifying its recommendation and/or declaration of advisability of the Offer and/or adoption of this Agreement, and to the extent it does so, the Company may refrain from calling, providing notice of and holding the Company Stockholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its stockholders to adopt this Agreement, (E) waiving the provisions keep Purchaser informed of any confidentiality and/or standstill agreement to which the Company is a party (provided, that the Company shall be deemed to simultaneously waive any such provisions of the Confidentiality Agreement), (F) taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction and/or (G) making any disclosure or filing required by law (including, without limitation, Delaware state law and the rules and regulations promulgated under the federal securities laws), stock exchange rules or the rules, regulations, order or request of any Governmental Entity (including the SEC), but in each case referred to in the foregoing clauses (A) through (E) only to the extent that the Company Board shall have concluded in good faith after consulting with its outside legal counsel and financial advisor that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) above, until after 24 hours notice to Parent with respect to such action. The Company Board shall, to the extent that it has concluded in good faith after consulting with its outside legal counsel and financial advisors that such action is consistent with the discharge of its fiduciary duties to the stockholders of the Company under applicable law, promptly inform Parent of the initial material terms and conditions of such Transaction Proposal and the identity of the Person making it. Upon execution of this Agreement, the Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations conducted heretofore with respect to any Transaction Proposal with any party other than Parent, Merger Sub or their representatives, and shall, upon consummation of the Offer, use its reasonable best efforts to cause any such other party in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. Notwithstanding anything to the contrary contained in Section 5.4 or elsewhere in this Agreement, prior to the Effective Time, the Company may, subsequent developments in connection with a possible Transaction Proposal, refer any third party to this Section 5.4 and Section 7.2(b) and make a copy of this Section 5.4 and Section 7.2(b) available to a third partytherewith.