Common use of Acquisition Proposals Clause in Contracts

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy The Company shall, and shall cause its Subsidiaries toSubsidiaries, cause and its and their respective officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, agents attorneys, accountants and other advisors, representatives and agents (collectively, “Representatives”) not to, (i) directly immediately cease and cause to be terminated immediately any activities, discussions or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) negotiations with any inquiries regarding or the making or submission of any proposal Persons that constitutesmay be ongoing with respect to, or may that could reasonably be expected to lead to, an Acquisition Proposal (defined below). The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with respect its consideration of any Acquisition Proposal to Brushyreturn or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access subject to the propertiesterms and conditions of such confidentiality agreements. As of the date hereof and prior to the Effective Time or earlier termination of this Agreement in accordance with Article VIII, books or records the Company shall not, nor shall it permit any of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy nor shall it or to any Person that Brushy, its Subsidiaries or authorize any of their respective Representatives knows to, and the Company and each Subsidiary shall use their respective reasonable best efforts to cause the Representatives not to, directly or has reason indirectly, (i) initiate, solicit, encourage or take any other action to believe is contemplating knowingly facilitate (including by way of furnishing information) any inquiries regarding, or the making an of any proposal which constitutes, any Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding related to any Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent arrangement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy understanding requiring it to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement. Any violation , (iii) initiate or participate in any way in any negotiations or discussions regarding an Acquisition Proposal or any inquiry or proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or (iv) amend or grant any waiver or release under any standstill or any similar agreement with respect to any class of the foregoing restrictions by BrushyCompany’s Subsidiaries or by any Representative of Brushy or its Subsidiariesequity securities; provided, whether or however, that, with respect to a bona fide, unsolicited written Acquisition Proposal made after the date hereof that does not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be result from a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this AgreementSection 6.3, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifCompany Stockholder Approval, prior the Company shall be entitled to such vote, (x) Brushy receives a bona fide written Acquisition Proposal furnish information with respect to Brushy from such third party (the Company and its Subsidiaries to the Person making such Acquisition Proposal was (and its Representatives) pursuant to a customary confidentiality agreement containing provisions not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any less restrictive of their respective Representatives after such Person than those in the date and Confidentiality Agreement (defined in violation of this AgreementSection 9.7), provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person, and (y) participate in discussions or negotiations with the Brushy Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, in each case commencing one business day after delivery of a written notice to Parent that it intends to furnish such information or enter into such discussions or negotiations (a “Determination Notice”), if (but only if) the Board determines of Directors of the Company has determined in good faith by resolution duly adopted the date on which the Determination Notice is given (A) after consultation with its a financial advisors advisor of nationally recognized reputation, that the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (defined below) and (B) after consultation with outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) , that the third party making failure to provide such Acquisition Proposal has information or enter into such discussions or negotiations would present a reasonably substantial risk of a breach of the financial and legal capacity fiduciary duties of the Company’s Board of Directors to consummate such Acquisition Proposalthe Company’s stockholders under applicable Law. Without limiting the foregoing, provided it is agreed that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) any provision or term in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 5.3(a)6.3(a) by the Company. The Company agrees that it will take the necessary steps to promptly inform the Representatives of the Company and its Subsidiaries of the obligations undertaken in this Section 6.3 and in the Confidentiality Agreement.

Acquisition Proposals. (a) Brushy agrees thatThe Company will notify the --------------------- Purchaser immediately if any proposals are received by, except as expressly contemplated by this Agreementany information is requested from, neither it nor or any negotiations or discussions are sought to be initiated or continued with the Company or its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, employees, investment bankers, attorneys, accountantsaccountants or other agents, financial advisors, agents and other representatives in each case in connection with any Acquisition Proposal (collectively, “Representatives”as hereinafter defined) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making possibility or submission consideration of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal ("Acquisition Proposal -------------------- Interest") indicating, in connection with such notice, the name of the Person -------- indicating such Acquisition Proposal Interest and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to Brushy or (iii) accept an any Acquisition Proposal with respect to Brushy or enter into Interest. The Company agrees that it shall keep Parent informed, on a current basis, of the status and terms of any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this AgreementInterest. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary As used in this Agreement, Brushy "Acquisition Proposal" shall mean any tender or exchange -------------------- offer involving the Company, any proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company (other than immaterial or insubstantial assets or inventory in the ordinary course of business or assets held for sale and other than the Brushy Board may take Xxxxxx Disposition), any actions described in clause (ii) of this Section 5.3(a) proposal or offer with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal recapitalization or restructuring with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries the Company or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal offer with respect to Brushy and (z) any other transaction similar to any of the Brushy Board determines in good faith by resolution duly adopted (after consultation foregoing with its financial advisors and outside legal counsel) that respect to the third party making such Acquisition Proposal has Company other than pursuant to the financial and legal capacity transactions to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information be effected pursuant to such third party without entering into an Acceptable Confidentiality this Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees thatThe Company will, except as expressly contemplated by this Agreementwill cause each of its and each of its Subsidiaries’ officers, neither it nor its Subsidiaries shalldirectors and employees to, and Brushy shallwill use reasonable best efforts to cause each of its other Representatives to, cease any discussions or negotiations with any Persons that may be ongoing with respect to a Company Takeover Proposal. The Company will, and shall cause will direct each of its Subsidiaries Representatives to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiatethrough another Person solicit, solicit initiate or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding regarding, or the making or submission of any proposal or offer that constitutes, or may would reasonably be expected to lead to, an Acquisition Proposal with respect to Brushya Company Takeover Proposal, (ii) participate or engage in or otherwise participate in any discussions or negotiations withregarding, or disclose furnish to any other Person any non-public information relating to Brushy in connection with or its Subsidiaries for the purpose of encouraging or afford access to the propertiesfacilitating, books or records of Brushy or its Subsidiaries toa Company Takeover Proposal, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or Contract providing for a Company Takeover Proposal. The Company will, and will direct each of its Representatives to, promptly (i) request (to the extent it has not already done so prior to the date of this Agreement) any Person that has executed a confidentiality or non-disclosure agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting connection with any actual or relating to an Acquisition potential Company Takeover Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation Company’s sale process for all or a portion of the foregoing restrictions by BrushyCompany’s Subsidiaries or by any Representative Building Products business unit that remains in effect as of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach the date of this Agreement by Brushy. Notwithstanding anything (a “Prior NDA”) to promptly return or destroy all confidential information in the contrary possession or under the control of such Person or its Representatives in this Agreement, Brushy accordance with the terms of such Prior NDA and the Brushy Board may take any actions described in clause (ii) waive any provisions of this Section 5.3(a) with respect to any Prior NDA that prevents the counterparty thereto from making a third party at any time Company Takeover Proposal without the prior to obtaining consent of the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged Company or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)Company Board.

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any person in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of permitted pursuant to this Section 5.3(a)), (x6.2) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (yB) that would requirerequiring, intended to cause, or would have which could reasonably be expected to cause the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger merger or the any other transactions transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by Brushyany of the Company’s Subsidiaries or by any Representative representatives of Brushy the Company or any of its Subsidiaries, whether or not such Representative representative is so authorized and whether or not such Representative representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Board its board of directors may take any actions described in clause (ii) of this Section 5.3(a6.2(a) with respect to a third party if at any time prior to obtaining the Brushy Required Vote if, prior to such vote, Effective Time (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and in violation of this Agreement), (y) such proposal constitutes, or the Brushy Board Company’s board of directors determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is could reasonably likely be expected to result in lead to, a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; . Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and no actions taken in accordance with this sentence any such waiver shall not constitute a violation of clause (i) breach of this Section 5.3(a)6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and Brushy shall, that it shall not permit its and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsSubsidiaries’ employees, agents and other representatives (collectivelyincluding any investment banker, attorney, consultant or accountant (“Representatives”) not retained by it or any of its Subsidiaries) on its behalf to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesor offer from any Person or group of Persons other than Parent or its affiliates, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushyto: (i) a merger, reorganization, share exchange, consolidation, business combination, plan of liquidation or similar transaction involving the Company; (ii) participate any purchase of 15% or more of any class of voting securities of the Company or its Subsidiaries; or (iii) any purchase or sale of 15% or more of the equity interest in the Company or the consolidated assets (on a book value basis) of the Company and its Subsidiaries, taken as a whole (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall not permit its and its Subsidiaries’ Representatives to, (i) engage in any discussions or negotiations with, or disclose provide any confidential or non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries data to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal Proposal; (ii) knowingly encourage any effort or attempt to make or implement an Acquisition Proposal; (iii) approve, recommend, agree to or accept, or propose to approve, recommend, agree to or accept any Acquisition Proposal; (iv) approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Acquisition Proposal; (v) withdraw, modify, qualify or change the Recommendation or (vi) resolve, propose or agree to do any of the foregoing. The Company agrees that it, and its Subsidiaries will immediately cease and cause to be terminated, and it will not permit its Representatives to continue, any existing activities, discussions or negotiations with any Persons with respect to Brushy or any Acquisition Proposal (y) that would require, or would have except with respect to the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushythe Company, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy the Company or to any Person that Brushythe Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy the Company, or (iii) accept an Acquisition Proposal with respect to Brushy the Company or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final penultimate sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy the Company or (y) that would require, or would have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushyany of the Company’s Subsidiaries or by any Representative of Brushy the Company or any of its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party Person at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (xw) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy the Company from such third party Person (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (yx) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in lead to a Superior Proposal from the third party Person that made the applicable Acquisition Proposal with respect to Brushy the Company, (y) the Company Board determines in good faith (after consultation with its outside legal counsel) that failure to take such action would be inconsistent with its fiduciary duties to the Company and the stockholders of the Company under applicable Law, and (z) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party Person making such Acquisition Proposal has is reasonably expected to have the financial and legal capacity ability to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party Person without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a). Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushythe Company, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy the Company or to any Person that Brushythe Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy the Company, or (iii) accept an Acquisition Proposal with respect to Brushy the Company or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final penultimate sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy the Company or (y) that would require, or would have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the Merger Mergers or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushyany of the Company’s Subsidiaries or by any Representative of Brushy the Company or any of its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy the Company from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy the Company, and (z) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a). Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. Except as contemplated hereby, the Company shall not (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall use its best efforts to cause its Subsidiaries to, cause their respective officers, directors, directors and employees and any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant, or other representatives (collectively, “Representatives”) agent or representative retained by it not to, (i) directly or indirectly indirectly, initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) information or assistance), or take any other action to facilitate, any inquiries regarding or the making or submission of any proposal that constitutesrelating to, or that may reasonably be expected to lead to, the acquisition of all or a significant part of the business and properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise with a third party other than Parent (an "Acquisition Proposal"), or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal with respect Proposal, or agree to Brushyor endorse any Acquisition Proposal, or authorize or permit any of the officers, directors, employees or agents of the Company or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company to take any such action. The Company shall as promptly as practicable notify Parent of all relevant terms of any such inquiries or proposals received by the Company and, if such inquiry or proposal is in writing, the Company shall as promptly as practicable deliver or cause to be delivered to Parent a copy of such inquiry or proposal. Notwithstanding the foregoing, nothing shall prohibit the Company's Board of Directors from (iia) participate furnishing information to, or engage in entering into discussions or negotiations with, any persons or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made entity in connection with an unsolicited bona fide proposal in connection with an Acquisition Proposal with respect to Brushy or to any Person that Brushyif, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything only to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) extent that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).such unsolicited bona fide proposal is on terms that the Company's

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushythe Company, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy the Company or to any Person that Brushythe Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy the Company, or (iii) accept an Acquisition Proposal with respect to Brushy the Company or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final penultimate sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy the Company or (y) that would require, or would have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the First Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushyany of the Company’s Subsidiaries or by any Representative of Brushy the Company or any of its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwiseauthorized, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy the Company from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counseladvisors) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy the Company, and (z) the Brushy Company Board determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and outside legal counsel) , that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party making such Acquisition Proposal has would be reasonably expected to be inconsistent with the financial and legal capacity to consummate such Acquisition ProposalCompany Board’s fiduciary duties under applicable Law, provided that Brushy (I) the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; Agreement and no (II) actions taken in accordance with pursuant to this sentence shall not constitute a violation of clause (i) of this Section 5.3(a). Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. (a) Brushy agrees thatFrom the date hereof until the Closing Date or, except as expressly contemplated by if earlier, the termination of this AgreementAgreement in accordance with Article IX, neither it nor its the VS Entities and their Subsidiaries shallshall not, and Brushy shall, the VS Entities shall instruct and shall cause its Subsidiaries to, use their respective reasonable best efforts to cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly initiate any negotiations with any Person with respect to, or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing provide any non-public information) information or data concerning any inquiries regarding VS Entity or any of the making or submission of VS Entities’ Subsidiaries to any proposal that constitutes, or may reasonably be expected to lead Person relating to, an Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of any VS Entity or any of the VS Entities’ Subsidiaries in connection with respect to Brushyan Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent intent, memorandum of understanding or agreement in principle (principle, or any other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or agreement relating to an Acquisition Proposal Proposal, (iii) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover Laws of any state with respect to Brushy an Acquisition Proposal, or (yiv) that would requireotherwise knowingly facilitate any such inquiries, proposals, discussions, or would have the effect of causing, Brushy to abandon, terminate negotiations or fail to consummate the Merger any effort or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or attempt by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting Person to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushymake an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, Brushy the VS Entities and their Subsidiaries and their respective representatives shall not be restricted pursuant to the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) foregoing sentence with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance connection with this sentence shall constitute a violation (1) the Pre-Closing Restructuring and (2) the arrangement of clause (i) financing in order to facilitate the consummation of this Section 5.3(a)the Transactions or for the financing of the Surviving Corporation and/or the VS Companies following the Closing.

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by Section 6.1(b), from the date of this AgreementAgreement until the Effective Date or, neither it nor its Subsidiaries shallif earlier, and Brushy shallthe valid termination of this Agreement in accordance with Section 8.1, the Company shall not, and shall cause each of its Subsidiaries to, cause their subsidiaries and its and its subsidiaries' respective officers, directorsdirectors and employees not to, investment bankers, attorneys, accountants, financial advisors, agents and shall use its reasonable best efforts to cause its and their other representatives (collectively, “Representatives”) respective Representatives not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding inquiries, proposals or offers with respect to, or the making or submission of any proposal that constitutesof, or may that could reasonably be expected to lead to, any Acquisition Proposal, or the consummation thereof, (ii) enter into, continue or otherwise participate or engage in, facilitate or encourage, any negotiations or discussions concerning, or that could reasonably be expected to lead to, an Acquisition Proposal Proposal, or provide access to its properties, books and records or any information or data to any Person relating to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) waive, terminate, modify or fail to enforce any provision of any "standstill" or similar obligation of any Person (other than BidCo) with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Company or any of their respective Representatives knows its subsidiaries, (v) take any action to make the provisions of any Takeover Law, or has reason any restrictive provision of any applicable anti-takeover provision in the Certificate of Incorporation or Articles of Association, inapplicable to believe is contemplating making an any transactions contemplated by any Acquisition Proposal with respect to Brushy or Proposal, (iiivi) accept an Acquisition Proposal with respect to Brushy execute or enter into any merger agreement, including acquisition agreement or other similar definitive agreement with respect to any letter Acquisition Proposal or (vii) authorize any of, or commit or agree to do any of, the foregoing. The Company shall, and shall cause each of intent or agreement in principle (its subsidiaries and its and its subsidiaries' respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))respective Representatives to, immediately cease, (x) providing forany solicitations, constituting discussions, communications or relating to negotiations with any Person (other than the Parties) in connection with an Acquisition Proposal Proposal, in each case that exist as of the date hereof and (y) all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation The Company also agrees that it will promptly (and in any event within two (2) Business Days) deliver a written notice to each such Person to the effect that the Company is ending all such solicitations, discussions, communications and negotiations with such Person, effective immediately, which written notice shall also request each Person (other than the Parties) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring the foregoing restrictions Company to promptly return or destroy all non-public information furnished to such Person by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries it or any of their respective Representatives after its subsidiaries prior to the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)hereof.

Acquisition Proposals. The Company and its Subsidiaries shall not, and shall use commercially reasonable efforts to cause their respective directors, officers, employees, agents and authorized representatives not to, directly or indirectly, (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding with respect to, or the making of, any Acquisition Proposal or submission of any offer or proposal that constitutes, or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (iib) engage, continue or otherwise participate in any negotiations or engage in discussions or negotiations withconcerning, or disclose any non-public information relating to Brushy or its Subsidiaries or afford provide access to the its properties, books and records or records of Brushy any confidential information or its Subsidiaries data to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal, (c) approve, endorse, recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (d) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal, and the Company shall not resolve or agree to do any of the foregoing. The Company shall immediately cease any solicitations, discussions or negotiations or other activities with any Person (other than the Parties) in connection with an Acquisition Proposal. The Company also agrees that it will promptly request each Person (other than the Parties) that has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of it or any of its subsidiaries prior to the date of this Agreement. 48 Agreement and Plan of Merger The Company shall promptly (and in any event within 24 hours of the Company obtaining knowledge thereof) notify Parent orally and in writing of the receipt of any inquiries, proposals or offers, any requests for information, or any requests for discussions or negotiations with the Company or any of its Representatives, in each case with respect to Brushy an Acquisition Proposal or (y) any offer or proposal that would require, or would have could reasonably be expected to lead to an Acquisition Proposal after the effect date of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy which notice shall include a summary of the material terms of, and the Brushy Board may take any actions described in clause (ii) identity of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifPerson making, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated(including, solicitedif applicable, knowingly encouraged copies of any such written requests, proposals or facilitated by Brushy or its Subsidiaries or offers, including proposed agreements) and thereafter shall keep Parent informed, on a reasonably current basis, of any of their respective Representatives after material developments related to the date terms, conditions and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation process associated with its financial advisors such proposals and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)offers.

Acquisition Proposals. Section 5.6.1 From the date of this Agreement to the Effective Time, the Company and the Operating Partnership agree that the Company, the Operating Partnership and the Company Subsidiaries shall not authorize or permit any Company Representative to, directly or indirectly, take any action to (a) Brushy agrees thatsolicit, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit initiate or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (iib) enter into, participate or otherwise engage in discussions or negotiations with, or disclose furnish any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries that is not available in Company SEC Filings to, any person with respect to an Acquisition Proposal, (c) withdraw, modify or amend the Company Recommendation in a manner adverse to Parent, (d) approve or recommend any Acquisition Proposal, (e) enter into any letter of intent, agreement in principle or agreement with respect to any Acquisition Proposal (other than a confidentiality agreement with a party to whom the Company is permitted to provide information in accordance with Section 5.6.2), or (f) resolve or agree to do any of the foregoing actions (any action or failure to act set forth in the foregoing clauses (c), (d), or (f) (to the extent related to the foregoing clauses (c) or (d)), a “Company Change in Recommendation”). The Company shall as promptly as practicable following the execution of this Agreement cease and cause to be terminated any discussions or negotiations with any persons conducted heretofore by or on behalf of the Company with respect to any Acquisition Proposal. From the date of this Agreement to the Effective Time, the Company and the Operating Partnership agree that the Company, the Operating Partnership and the Company Subsidiaries shall not waive, modify or amend any standstill or similar provision of any agreement, letter or understanding that would in any way prohibit any Person that has made from making or otherwise facilitating the making of an Acquisition Proposal with respect and the Company and the Operating Partnership shall pursue all remedies available to Brushy or to them upon a breach by any Person of any such provisions; provided, however, that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifShareholder Approval of the Company Merger, prior to the Company Board may waive such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after provision if the date and in violation of this Agreement), (y) the Brushy Company Board determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) , that the third party making such Acquisition Proposal has failure to grant a waiver would be inconsistent with the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation duties of clause (i) of this Section 5.3(a)the Company trustees under applicable Law.

Acquisition Proposals. (a) Brushy agrees thatIn the case of the Company, except it shall not, and it shall cause the Company Subsidiaries not to, solicit or encourage inquiries or proposals with respect to, or furnish any nonpublic information relating to or participate in any negotiations or discussions concerning, any acquisition or purchase of all or a substantial portion of the assets of, or a substantial equity interest in, the Company or any of the Company Subsidiaries or any merger or other business combination with the Company or any of the Company Subsidiaries other than as expressly contemplated by this Agreement, neither Plan; it nor shall instruct its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective the Company Subsidiaries' officers, directors, investment bankersagents, attorneysadvisors and affiliates to refrain from taking any action that would violate or conflict with any of the foregoing; and it shall notify First Union immediately if any such inquiries or proposals are received by, accountantsor any such negotiations or discussions are sought to be initiated with, financial advisorsthe Company or any of the Company Subsidiaries. However, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding nothing in this Plan will prevent the Company or the making or submission of any proposal that constitutes, or may reasonably be expected Company Board from (1) providing information in response to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that a request therefor by a person who has made an Acquisition Proposal with respect unsolicited BONA fide written proposal for an acquisition or purchase of the type described in the preceding sentence, if the Company receives from the person an executed confidentiality agreement on terms substantially similar to Brushy or to any Person that Brushythose contained in SECTION 5.05, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii2) accept engaging in any negotiations or discussions with any person who has made such an Acquisition Proposal with respect unsolicited BONA FIDE written proposal, if and only to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))extent that, (xA) providing for, constituting or relating in each such case referred to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii1) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, or (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement2), (y) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counseladvisor) that such proposal constitutes or the proposal, if accepted, is reasonably likely to be consummated without significant delay, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal, and would, if consummated, result in a Superior Proposal transaction more favorable to the holders of shares of Company Common Stock from a financial point of view than the third party Merger. If negotiations or discussions are initiated in accordance with the preceding sentence, the Company agrees that made it will notify First Union immediately and will from time-to-time (or at any time at the applicable Acquisition Proposal request of First Union) notify First Union of the progress thereof (including all current terms and any other information that First Union may from time-to-time request). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to Brushy any such acquisition or purchase. The Company agrees to use all reasonable efforts to enforce any confidentiality and/or "stand-still" contract to which it is a party and (z) not to amend, terminate, waive or release any provision of any such contract in a manner that is material and adverse to its rights under the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)contract.

Acquisition Proposals. (a) Brushy agrees thatFrom the date hereof until the Closing Date or, except as expressly contemplated by if earlier, the termination of this AgreementAgreement in accordance with Article XI, neither it nor the Company and its Subsidiaries shallshall not, and Brushy the Company shall instruct and use its reasonable best efforts to cause its representatives, not to, directly or indirectly: (i) initiate, solicit or engage in any negotiations with any Person with respect to, or provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (ii) execute or enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other arrangement or agreement relating to an Acquisition Proposal, (iii) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state, (iv) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or (v) agree or otherwise commit to enter into or engage in any of the foregoing. The Company also agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Subsidiaries and shall use its reasonable best efforts to cause its and their representatives to, cause cease any solicitations, discussions or negotiations with any Person (other than the parties and their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”representatives) not to, (i) directly conducted heretofore in connection with an Acquisition Proposal or indirectly initiate, solicit any inquiry or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal request for information that constitutes, or may could reasonably be expected to lead to, or result in, an Acquisition Proposal Proposal. The Company shall promptly (and in any event within two Business Days) notify, in writing, SPAC of the receipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, which notice shall include a summary of the material terms of such inquiry, proposal, offer or request for information. The Company shall promptly (and in any event within twenty-four (24) hours) keep SPAC reasonably informed of any material developments with respect to Brushyany such inquiry, (ii) participate proposal, offer, request for information or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(amaterial changes thereto).

Acquisition Proposals. (a) Brushy agrees thatSubject to Section 6.3(b), except as expressly contemplated by this Agreementthe Company will not (and will not resolve or publicly propose to), neither it nor its Subsidiaries shalldirectly or indirectly, and Brushy shall, and shall will cause its Subsidiaries and its and their Representatives not to (and not to resolve or publicly propose to), cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, from the date hereof until the Purchase Time: (i) directly or indirectly initiate, solicit or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal inquiries, proposals or offers that constitutesconstitute an, or may are reasonably be expected likely to lead toresult in the making, an submission or announcement of any, Acquisition Proposal with respect to Brushy, Proposal; (ii) initiate, participate in, knowingly encourage or engage in otherwise knowingly facilitate any discussions or negotiations withregarding, or disclose furnish to any Person (other than Parent and its Affiliates) any non-public information relating to Brushy with respect to, assist or its Subsidiaries participate in any effort or afford access to the propertiesattempt by any Person with respect to, books or records of Brushy or its Subsidiaries otherwise cooperate in any way with respect to, any Person such inquiries, proposals or offers; (iii)(A) withdraw, modify or qualify in a manner adverse to Parent or Purchaser, or publicly propose to withdraw or to modify or qualify in a manner adverse to Parent or Purchaser, the Company Board Recommendation (it being understood that has made an Acquisition Proposal with respect the Company Board Recommendation shall be deemed to Brushy have been modified or qualified in a manner adverse to Parent and Purchaser if the Company Board Recommendation ceases to remain unanimous and either: (I) following such cessation, the Minimum Tender Condition is not satisfied; or (II) (1) any director who ceases to support the Offer or the Merger also voices opposition to the Offer and the Merger and such opposition is disclosed publicly or to any Person stockholder of the Company that Brushyis not also a director or officer of the Company and (2) such opposition is reasonably expected to adversely effect the likelihood of consummation of the Offer or the Merger) or (B) recommend the approval or adoption of, its Subsidiaries or accept, approve or adopt, or publicly propose to recommend, accept, approve or adopt, any Acquisition Proposal, or resolve, agree or publicly propose to take any of the actions contemplated by clauses “(A)” or “(B)” (any action described in this clause “(iii)” being referred to as a “Change of Board Recommendation”); or (iv) except for a confidentiality agreement contemplated pursuant to Section 6.3(b), approve or recommend, or publicly propose to approve or recommend, or cause or permit the Company or any of their respective Representatives knows or has reason its Subsidiaries to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy execute or enter into any merger agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (xA) providing for, constituting or relating to, or that contemplates or is intended or is reasonably likely to result in, an Acquisition Proposal with respect to Brushy or (yB) that would require, requiring the Company (whether or would have the effect of causing, Brushy not subject to conditions) to abandon, terminate or fail to consummate the Merger Offer or the other transactions contemplated by this Merger (any of “(A)” and “(B)”, an “Acquisition Agreement”). Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its SubsidiariesThe Company will, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or will cause its Subsidiaries or otherwiseand its and their Representatives to, shall be deemed immediately cease and cause to be a breach of this Agreement terminated any solicitation, discussion or negotiation with any Persons conducted heretofore by Brushy. Notwithstanding anything to the contrary in this AgreementCompany, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective its Representatives after the date and in violation of this Agreement)with respect to any inquiries, (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) proposals or offers that such proposal constitutes constitute an, or is are reasonably likely to result in the making, submission or announcement of any, Acquisition Proposal, and, to the extent the Company is contractually permitted to do so, will request the return or destruction of all confidential information provided by or on behalf of the Company or its Subsidiaries or its or their Representatives to any such Person. The Company agrees not to release or permit the release of any Person from, or to amend or waive or permit the amendment or waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Company or its Subsidiaries is or becomes a Superior Proposal from party or under which any of the third party that made Company or its Subsidiaries has or acquires any rights (unless the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Company Board determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and having taken into account the advice of the Company’s outside legal counsel) , that the third party making failure to take such Acquisition Proposal has action would be inconsistent with its fiduciary obligations to the financial Company’s stockholders under applicable Law), and legal capacity will use its reasonable best efforts to consummate enforce or cause to be enforced each such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation agreement at the request of clause (i) of this Section 5.3(a)Parent.

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by this AgreementSection 5.2, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their respective directors, officers, directorsemployees, other Affiliates, investment bankers, attorneys, accountants, financial advisors, agents accountants and other advisors or representatives (collectively, “Representatives”) not to, directly or indirectly (i) directly initiate or indirectly initiatesolicit, solicit or knowingly encourage facilitate or facilitate (including by way of furnishing non-public information) encourage, any inquiries regarding inquiries, discussions or requests with respect to or the making or submission of any proposal or offer that constitutes, constitutes or may would reasonably be expected to lead to, to an Acquisition Proposal with respect to Brushy(an “Inquiry”), (ii) participate or engage in or otherwise participate in any discussions or negotiations withregarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, or disclose provide any access to its properties, books or records or any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries relating to the Company or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal its Subsidiaries in connection with respect to Brushy or the foregoing, (iii) accept an Acquisition Proposal with respect to Brushy or enter into any other acquisition agreement, including any option agreement, joint venture agreement, partnership agreement, letter of intent intent, term sheet, merger agreement or similar agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (xAgreement) providing for, constituting or relating with respect to an Acquisition Proposal (an “Alternative Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Acquisition Proposal, (v) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company inapplicable to any transactions contemplated by any Acquisition Proposal or (vi) authorize, commit to, agree or publicly propose to do any of the foregoing. As of the No-Shop Period Start Date (as defined in the Original Agreement), the Company has, and has caused its Subsidiaries and its and their directors, officers and employees and has instructed its Affiliates and other Representatives to immediately cease all solicitations, discussions and negotiations with any Persons (other than Parent and its Representatives) that may be ongoing with respect to Brushy an Acquisition Proposal or Inquiry and request that each such Person (yother than Parent and its Representatives) that would require, promptly return or would have the effect of causing, Brushy destroy all confidential information furnished to abandon, terminate such Person by or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary Company in this Agreement, Brushy and the Brushy Board may take connection with any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)Inquiry.

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither that the Company shall not nor shall it nor authorize any of its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other or representatives of the Company or any subsidiary (collectivelyincluding, “Representatives”any investment banker, attorney or accountant retained by any of the foregoing) not to, initiate, continue, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal or offer to Stockholders of the Company, with respect to a merger, 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 XxxxXxxxxx.xxx (any such proposal or offer being hereinafter referred to as an "Acquisition 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 Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or enter into any agreement or understanding with any other person or entity with the intent to effect any Acquisition Proposal. The Company will notify Parent of any written Acquisition Proposals or oral Acquisition Proposals made to any officer of the Company which in either event shall include the value of the Acquisition Proposal. Promptly after the execution of this Agreement and the announcement of the Transactions, the Company will request each person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any portion thereof to return or destroy all confidential information heretofore furnished to such person by or on behalf of the Company. Nothing contained in this Section shall prohibit Company and its Board of Directors from (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal taking and disclosing positions with respect to Brushya tender offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated by the SEC under the Exchange Act or making any disclosure required by Law to the Company's stockholders as determined in good faith by the Board of Directors, taking into account the advice of legal counsel to the Company, or (ii) participate furnishing information, including without limitation nonpublic information, to or engage entering into negotiations with, any person or entity that has indicated its willingness to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, (A) such unsolicited bona fide proposal relating to a Company Acquisition Proposal is made by a third party that the Board of Directors of the Company determines in good faith has a good faith intention to proceed with negotiations to consider, and financial capability to consummate, such Company Acquisition Proposal, such Company Acquisition Proposal is to acquire at least (a) 50% of the consolidated assets or outstanding voting power of the Company's securities, or (b) all of the outstanding securities or assets of Aunt Xxxxxx.xxx and is financially superior to the Transactions to the shareholders of the Company, as determined in good faith in each case by the Company's Board of Directors taking into account the advice of its financial advisors and legal counsel (a "Superior Proposal"), (B) the Board of Directors of Company, after duly considering the advice of legal counsel to Company, determines in good faith that such action is required for the Board of Directors of Company to comply with its fiduciary duties to stockholders imposed by applicable law, (C) contemporaneous with furnishing such information to, or entering into discussion or negotiations with, such person or entity Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or disclose entity and (D) Company uses all reasonable efforts to keep Parent informed in all material respect of the status and terms of any non-public information relating such negotiations or discussions (including without limitation the identity of the person or entity with whom such negotiations or discussions are being held) and provides Parent copies of such written proposal and any amendments or revisions thereto or correspondence related thereto; provided, that Parent agrees to Brushy or its Subsidiaries or afford access execute a confidentiality agreement, in form reasonably acceptable to the propertiesParent, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or any such information delivered to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason Parent pursuant to believe is contemplating making an Acquisition Proposal with respect to Brushy or this clause (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)D), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, which confidentiality agreement shall be deemed subject to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged Parent's disclosure obligations arising under applicable law or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)securities exchange regulations.

Acquisition Proposals. (a) Brushy Company represents and warrants to, and covenants and agrees with, Parent and Newco that neither Company nor any of its subsidiaries has any agreement, arrangement or understanding with any potential acquiror that, except as expressly contemplated directly or indirectly, would be violated, or require any payments, by reason of the execution, delivery and/or consummation of this Agreement, neither it nor its Subsidiaries shall, and Brushy . Company shall, and shall cause its Subsidiaries to, subsidiaries and use its best efforts to cause its and their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person (including a "person" as defined in Section 13(d)(3) of the Exchange Act) other than Parent or Newco (a "Third Party") heretofore conducted with respect to any Acquisition Transaction. Company shall not, and shall cause its subsidiaries and use its best efforts to cause its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives (collectively, “Representatives”) not to, (i) directly or indirectly indirectly, (x) solicit, initiate, solicit continue, facilitate or knowingly encourage or facilitate (including by way of furnishing or disclosing non-public information) any inquiries regarding inquiries, proposals or the making or submission of any proposal that constitutesoffers with respect to, or may that could reasonably be expected to lead to, an Acquisition Proposal with respect to Brushyany acquisition or purchase of a material portion of the assets or business of, or any significant equity interest in (ii) participate including by way of a tender offer), or engage in discussions any amalgamation, merger, consolidation or negotiations business combination with, or disclose any non-public information relating to Brushy recapitalization or its Subsidiaries restructuring, or afford access to the propertiesany similar transaction involving, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Company or any of their respective Representatives knows or has reason its subsidiaries (the foregoing being referred to believe is contemplating making collectively as an "Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)Transaction"), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would requirenegotiate, explore or would have the effect of causingotherwise communicate in any way with any Third Party with respect to any Acquisition Transaction or enter into, Brushy approve or recommend any agreement, arrangement or understanding requiring Company to abandon, terminate or fail to consummate the Merger Offer and/or the Amalgamation or the any other transactions transaction contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushyhereby. Notwithstanding anything to the contrary in this Agreementthe foregoing, Brushy Company may, prior to the purchase of Shares pursuant to the Offer, in response to an unsolicited written proposal with respect to an Acquisition Transaction involving the acquisition of all of the Shares (or all or substantially all of the assets of Company and the Brushy Board may take any actions described its subsidiaries) from a Third Party (which proposal (I) is not subject to a financing condition and is from a person that Xxxxxxx, Xxxxx & Co. or another nationally recognized investment bank advises in clause writing is financially capable of consummating such proposal or (II) is subject to financing, but is from a person that Xxxxxxx, Sachs & Co. or another nationally recognized investment bank advises in writing is financially capable of achieving such financing to consummate such proposal, (i) furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if and to the extent that (a) the Board determines reasonably and in good faith by a majority vote (after receipt of written advice of Company's outside legal counsel that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law), that taking such action would, in all likelihood, lead to an Acquisition Transaction that, based upon the written advice of Xxxxxxx, Xxxxx & Co., is more favorable to Company's shareholders than the Offer and the Amalgamation and that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law (the proposal with respect to an Acquisition Transaction meeting the requirements of the parenthetical clause immediately preceding clause (i) and this Section 5.3(aclause (a), a "Superior Proposal"), (b) prior to furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such Third Party, Company receives from such Third Party an executed confidentiality agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not provide for any exclusive right to negotiate with Company or any payments and (c) Company advises Parent of all such non-public information delivered to such Third Party concurrently with such delivery; provided, however, that Company shall not, and shall cause its affiliates not to, enter into a definitive agreement with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, Superior Proposal unless (x) Brushy receives a bona fide written Acquisition Proposal Company concurrently terminates this Agreement in accordance with respect to Brushy from such third party (the terms hereof and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or pays any of their respective Representatives after the date amounts required under Article VIII and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely agreement permits Company to result in terminate it if it receives a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information such termination and related provisions to such third party without entering into an Acceptable Confidentiality Agreement; be on terms no less favorable to Company, including as to fees and no actions taken in accordance with this sentence shall constitute a violation reimbursement of clause (i) of this Section 5.3(a)expenses, as those contained herein.

Acquisition Proposals. (a) Brushy Until this Agreement has been terminated in accordance with Section 6.1 (and the payments, if any, required to be made in connection with such termination pursuant to Section 6.2 have been made), each Party agrees that, except as expressly contemplated by this Agreement, neither that it nor its Subsidiaries shallwill not, and Brushy shall, and shall will cause its Subsidiaries and its and their Representatives not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public or disclosing information) ), solicit, initiate, make or facilitate the making of, or take any other action to facilitate any inquiries regarding or the making or submission of any proposal that constitutes, constitutes or may reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal, (ii) knowingly participate or engage in any way in discussions or negotiations with, or furnish or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that (other than the other Party or any of its Subsidiaries) in connection with any Acquisition Proposal, (iii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which such Party is a party or under which such Party has made an Acquisition Proposal any rights with respect to Brushy the divestiture of the voting securities or to any Person that Brushy, its Subsidiaries material portion of the assets of such Party (except for any such agreement with the other Party or any of their respective Representatives knows its Subsidiaries), (iv) in the case of Company, waive application of the Company Rights Plan, it being understood that the Company Rights Plan may terminate in accordance with the terms of the Company Rights Plan prior to the Effective Time, (v) effect a Change in Recommendation, (vi) approve or has reason recommend, or propose to believe is contemplating making an approve or recommend, any Acquisition Proposal with respect to Brushy or (iiivii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent intent, agreement-in-principle, acquisition agreement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting instrument contemplating or otherwise relating to an any Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy requiring such Party to abandon, terminate or fail to consummate any of the Merger or the other transactions contemplated by this Agreement. Any violation of hereby, including the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by BrushyArrangement. Notwithstanding anything to the contrary in this Agreementforegoing, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required procurement of the Company Requisite Shareholder Vote ifin the case of Company and of the Acquiror Requisite Shareholder Vote in the case of Acquiror, prior to such vote, Party (xthe “Acting Party”) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party may (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or may permit its Subsidiaries or any of and its and their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).to):

Acquisition Proposals. (a) Brushy agrees thatWithout limitation on any of the Company's other obligations under this Agreement (including under Article IV hereof), and except as expressly contemplated otherwise provided by this Agreement, the Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and Brushy shall, and that it shall use its reasonable best efforts to cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsand its Subsidiaries' employees, agents and other representatives (collectivelyincluding any investment banker, “Representatives”attorney or accountant retained by it or any of its Subsidiaries) not to, (i) directly or indirectly indirectly, initiate, solicit solicit, encourage or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving it, or may reasonably any purchase or sale of the assets (including stock of Subsidiaries) of the Company and its Subsidiaries, taken as a whole, having an aggregate value equal to $100,000 or more, excluding the assets to be expected transferred pursuant to lead Section 6.2(f), or any purchase or sale of, or tender or exchange offer for, any of the equity securities of such party (any such proposal or offer (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an " Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal. Notwithstanding anything in this Agreement to the contrary, the Company and its Board of Directors shall be permitted to (i) comply with respect Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to Brushyan Acquisition Proposal, and (ii) participate make such other disclosures to the Company's shareholders as the Board of Directors determines in good faith after consulting with its counsel and determining that the failure to make such disclosure would constitute a breach of the Board of Directors' fiduciary duties under applicable law. The Company shall promptly notify Parent of any such inquiries, proposals or engage in 28 offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, or disclose any non-public information relating to Brushy of it or its Subsidiaries or afford access to the properties, books or records with any of Brushy its or its Subsidiaries Subsidiaries' officers, directors, employees, agents or other representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any inquiries, proposals or offers. The Company agrees that it will promptly keep the other party informed of the status and terms of any such proposals or offers. The Company agrees that it will, and will cause its officers, directors, employees, agents and other representatives to, immediately cease and cause to be terminated any Person that has made an Acquisition Proposal activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to Brushy or any Acquisition Proposal. The Company agrees that it will use reasonable best efforts to any Person that Brushypromptly inform its officers, its Subsidiaries or any directors, employees, agents and other representatives of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement the obligations undertaken in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)5.4.

Acquisition Proposals. (a) Brushy Parent agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries the Company shall, and Brushy shall, and Parent shall cause its Subsidiaries to, cause their respective and the Company’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly indirectly, initiate, solicit or knowingly encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto or its Representatives) any information relating to Brushy the Company or its Subsidiaries any of the Company’s Subsidiaries, or afford access to the properties, books or records of Brushy the Company or its any of the Company’s Subsidiaries to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal with respect to Brushy or to that the Company, any Person that Brushy, its of the Company’s Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, arrangement or understanding, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in under circumstances contemplated in the final sentence of this Section 5.3(a5.2(b)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would could have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the Merger Acquisition or the any other transactions transaction contemplated by this Agreement. Other than with respect to PESI, Parent shall not (A) waive, modify, terminate, or fail to enforce any “standstill” obligation of any Person, and (B) render the restrictions, if any, under the Nevada Corporate Code relating to business combinations inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.2(a) by Brushy’s any of Parent, the Company, or any of their Subsidiaries or by any Representative of Brushy Parent, the Company or its any of their Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy Parent, the Company or its any of their Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)Parent.

Acquisition Proposals. (a) Brushy agrees thatThe Merger Agreement provides that the Company shall not, except as expressly contemplated by this Agreement, neither nor shall it nor permit any of its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries subsidiaries to, cause their respective officersnor shall it authorize or permit any officer, directorsdirector or employee of, or any investment bankersbanker, attorneysattorney or other advisor or representative of, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not the Company or any of its subsidiaries to, (i) directly solicit or indirectly initiate, solicit or knowingly encourage the submission of, any takeover proposal 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 (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, any takeover proposal; provided, however, that, prior to the acceptance for payment of the Shares pursuant to the Offer, if in the opinion of the Board of Directors of the Company, after consultation with counsel, such failure to act would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to an Acquisition Proposal unsolicited takeover proposal, and subject to compliance with the provisions described in the second succeeding paragraph, (A) furnish information with respect to Brushy, the Company to any person pursuant to a confidentiality agreement and (iiB) participate in negotiations regarding such takeover proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to executive officer of the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Company or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiariessubsidiaries, whether or not such Representative is so authorized and whether or not such Representative person is purporting to act on behalf of Brushy the Company or any of its Subsidiaries subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary provisions described in this paragraph by the Company. For purposes of the Merger Agreement, Brushy and "takeover proposal" means any proposal or offer from any person relating to any direct or indirect acquisition or purchase of a material amount of assets of the Brushy Board may take Company or any actions of its subsidiaries or of over 20% of any class of equity securities (other than acquisitions of stock by institutional investors in the ordinary course of business) of the Company or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of the Company or any of its subsidiaries or which would require approval under any Gaming Law, or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its subsidiaries other than the transactions contemplated by the Merger Agreement, or any other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the Offer or the Merger or which would reasonably be expected to dilute materially the benefits to Parent of the transactions contemplated hereby. The Merger Agreement provides that, except as set forth in the provisions described in clause this paragraph, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, the Merger Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any takeover proposal or (iii) enter into any agreement with respect to any takeover proposal. Notwithstanding the foregoing, in the event prior to the time of acceptance for payment of the Shares in the Offer if in the opinion of the Board of Directors of the Company after consultation with counsel, failure to do so would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to the terms of this Section 5.3(aand the following sentences) withdraw or modify its approval or recommendation of the Offer, the Merger Agreement or the Merger, approve or recommend a competitive proposal, or enter into an agreement with respect to a third party competitive proposal, in each case at any time prior to obtaining after the Brushy Required Vote ifsecond business day following Parent's receipt of written notice (a "Notice of Competitive Proposal") advising Parent that the Board of Directors of the Company has received a competitive proposal, prior to specifying the material terms and conditions of such vote, (x) Brushy receives a bona fide written Acquisition Proposal competitive proposal and identifying the person making such competitive proposal; provided that the Company shall not enter into an agreement with respect to Brushy from a competitive proposal unless the Company shall have furnished Parent with written notice no later than 12:00 noon two business days in advance of any date that it intends to enter into such third party agreement. In addition, if the Company proposes to enter into an agreement with respect to any takeover proposal, it shall concurrently with entering into such agreement pay, or cause to be paid, to Parent the Expenses and the Termination Fee. For purposes of the Merger Agreement, a "competitive proposal" means any bona fide take-over proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors of the Company determines in its good faith judgment to be more favorable to the Company's stockholders than the Offer and the Merger (taking into account any improvements to the Offer and such Acquisition Proposal was not initiatedthe Merger proposed by Parent). The Merger Agreement provides that in addition to the obligations of the Company described in the immediately preceding paragraph, solicitedthe Company shall advise Parent of any request for information or of any takeover proposal, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any proposal with respect to any takeover proposal, the material terms and conditions of their respective Representatives after such request or takeover proposal, and the date identity of the person making any such takeover proposal or inquiry. The Company will keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, takeover proposal or inquiry. The Merger Agreement provides that, nothing contained in violation the provisions described under "Acquisition Proposals" shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, in the opinion of this Agreement)the Board of Directors of the Company, (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with counsel, failure to so disclose would be inconsistent with its financial advisors and outside legal counsel) fiduciary duties to the Company's stockholders under applicable law; provided that such proposal constitutes the Company does not, except as permitted by provisions described in the second preceding paragraph, withdraw or is reasonably likely modify, or propose to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal withdraw or modify, its position with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) Offer or the Merger or approve or recommend, or propose to approve or recommend, a takeover proposal. Conditions to Each Party's Obligation To Effect the Merger. The Merger Agreement provides that the third respective obligation of each party making such Acquisition Proposal has to effect the financial and legal capacity Merger is subject to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information the satisfaction or waiver on or prior to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation the Closing Date of clause (i) of this Section 5.3(a).the following conditions:

Acquisition Proposals. (a) Brushy agrees thatUntil the Effective Time or, except as expressly contemplated by if earlier, the termination of this AgreementAgreement in accordance with Article ARTICLE VIII herein, neither it nor the Company, its Subsidiaries shalland their representatives shall not, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, without the prior written consent of Buyer (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding inquiry or the making or submission of any proposal or offer that constitutes, or may would reasonably be expected to lead to, an Acquisition Proposal with respect relating to Brushythe Company as a whole or the Television Business (but not the Online Business), (ii) engage in, enter into, continue or otherwise participate or engage in any discussions or negotiations withwith any person with respect to, or disclose provide any non-public information or data concerning the Company or any of its subsidiaries to any person relating to, an Acquisition Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, relating to Brushy the Company as a whole or its Subsidiaries the Television Business (but not the Online Business) or afford to any person access to the business, properties, books assets or records personnel of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries the Company or any of their respective Representatives knows or has reason to believe is contemplating making its subsidiaries in connection with an Acquisition Proposal with respect Proposal, or any proposal or offer that would be reasonably expected to Brushy lead to an Acquisition Proposal, relating to the Company as a whole or the Television Business (but not the Online Business), (iii) accept an Acquisition Proposal with respect to Brushy or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent intent, memorandum of understanding or agreement in principle principle, or any other agreement (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this as permitted pursuant to Section 5.3(a6.6(b)) relating to any Acquisition Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, (an “Alternative Acquisition Agreement”), (xiv) providing forgrant any waiver, constituting amendment or release under any standstill or confidentiality agreement or any state takeover statute, other than a waiver of any “don’t ask—don’t waive” provisions of any standstill agreements now in effect, (v) otherwise knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt by any person to make an Acquisition Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, relating to the Company as a whole or the Television Business (but not the Online Business), or (vi) resolve, propose or agree to do any of the foregoing. The Company and its officers and directors shall, and the Company shall instruct and cause the Company’s representatives, its Subsidiaries and their representatives to, immediately cease and terminate all discussions and negotiations with any persons that may be ongoing with respect to an Acquisition Proposal relating to the Company as a whole or the Television Business (but not the Online Business), and as promptly as practicable thereafter deliver a written notice to each such person to the effect that the Company is ending all discussions and negotiations with such person with respect to Brushy or (y) that would require, or would have any Acquisition Proposal relating to the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger Company as a whole or the other transactions contemplated by this Agreement. Any violation of Television Business (but not the foregoing restrictions by Brushy’s Subsidiaries Online Business), effective immediately, which notice shall also request such person to promptly return or by any Representative of Brushy or destroy all confidential information concerning the Company and its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, that neither it the Company --------------------- nor any of its Subsidiaries subsidiaries nor any of the respective officers and directors of the Company or its subsidiaries shall, and Brushy shall, the Company shall direct and shall use its best efforts to cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other representatives (collectivelyincluding, “Representatives”without limitation, any investment banker, attorney or accountant retained by the Company or any of its subsidiaries) not to, initiate, continue, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to stockholders of the Company) or furnish any non-public information to any third party, with respect to a merger, consolidation, business combination or similar transaction involving, or any tender offer, exchange offer or other 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 being hereinafter referred to as an "Acquisition Proposal") or, unless the Board of Directors of the -------------------- Company receives an unsolicited written offer with respect to a merger, consolidation or sale of all or substantially all of the Company's assets or an unsolicited tender or exchange offer for the Shares is commenced, which the Board of Directors of the Company determines in good faith (after receiving advice of independent legal counsel that such action is required for the discharge of their fiduciary duties) is more favorable to the stockholders of the Company than the Offer (an "Alternative Transaction"), engage in any ----------------------- negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. The Company 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. The Company will as promptly as reasonably practicable (and in any event within 24 hours) notify Purchaser (i) directly if any such inquiries or indirectly initiateproposals are received by, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutessuch information is requested from, or may reasonably any such negotiations or discussions are sought to be expected to lead to, an Acquisition Proposal initiated with respect to Brushythe Company, (ii) participate of its receipt of an acquisition proposal and (iii) of the existence of an Alternative Transaction. Prior to furnishing nonpublic information to, or engage in entering into discussions or negotiations with, any other persons or disclose any non-public information relating to Brushy entities, the Company shall obtain from such person or its Subsidiaries or afford access entity an executed confidentiality agreement with terms no less favorable, taken as a whole, to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other Company than an Acceptable Confidentiality Agreement in circumstances contemplated those contained in the final sentence Confidentiality Agreement, but which confidentiality agreement shall not include any provision calling for an exclusive right to negotiate with the Company, and the Company shall advise Purchaser of this Section 5.3(a)), (x) providing for, constituting or relating all such nonpublic information delivered to an Acquisition Proposal such person concurrently with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything delivery to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)requesting party.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallThe Company shall not, and shall cause each of its Subsidiaries Subsidiaries, and its and any such Subsidiaries' respective Representatives not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit solicit, encourage or knowingly encourage or facilitate (including by way of furnishing non-public informationinformation or assistance) any inquiries regarding or expressions of interest or the making or submission of any proposal or offer that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal to (x) a proposal or offer with respect to Brushya merger, reorganization, share exchange, recapitalization, liquidation, dissolution, consolidation or similar transaction involving, or any purchase or series of related purchases directly or indirectly (including, by way of lease, exchange, sale, mortgage, pledge, tender offer, exchange offer or otherwise, as may be applicable), of 5% or more of the assets (based on fair market value) or any equity interests (in economic or voting power) in, the Company or any of its Subsidiaries, (y) a breach of this Agreement or the Stockholders Agreement or any interference with the completion of the Merger or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing (any of the foregoing inquiries, expressions of interest, proposals, or offers being referred to in this Agreement as an "Acquisition Proposal"), (ii) participate or engage in discussions or any negotiations withconcerning, or disclose provide any non-public confidential information relating to Brushy or its Subsidiaries data to, or afford access to the properties, books or records of Brushy or its Subsidiaries tohave any discussions with, any Person that has made relating to an Acquisition Proposal with respect to Brushy Proposal, or to any Person that Brushyotherwise facilitate the making of, its Subsidiaries or any of their respective Representatives knows effort or has reason attempt to believe is contemplating making make or implement, an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept agree to or recommend to its stockholders any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 shall prevent the Company from (i), based on the advice of outside legal counsel, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or providing any other legally required disclosure to the stockholders of the Company (provided that, except as otherwise permitted in this Section 5.3, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to Brushy the Merger or enter approve or recommend, or propose to approve or recommend, an Acquisition Proposal), (ii) prior to receipt of the Required Company Vote, and subject to compliance by the Company with the immediately following sentence, providing information to, or engaging in any negotiations or discussions with, any Person who has made an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Board of Directors of the Company determines, in good faith after consultation with, and based upon the advice of, outside legal counsel, that providing such information and engaging in such discussions or negotiations is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law, (B) such Acquisition Proposal is not subject to any financing contingencies, (C) the Board of Directors determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with the Company Financial Advisor, would, if 48 51 consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any agreementsuch more favorable Acquisition Proposal, including a "Superior Proposal") and (D) prior to taking such action and furnishing any letter information to any such party, the Company (x) provides reasonable notice to the Parent to the effect that it is taking such action, (y) provides such information to the Parent (if and to the extent it has not already done so), and (z) shall have entered into a confidentiality/standstill agreement on customary terms as advised by outside legal counsel, and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, or (iii) prior to receipt of intent the Required Company Vote, recommending such a Superior Proposal to the holders of Company Common Stock and withdrawing the prior recommendation of this Agreement, if and only to the extent that, in each case referred to in clause (ii) or agreement (iii) above, the Board of Directors of the Company determines, in principle good faith after consultation with, and based upon the advice of, outside legal counsel, that taking such action is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law; provided, however, the Board of Directors of the Company may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first terminated this Agreement in accordance with, and complied with its obligations set forth in, Section 7.1(g) and the time period referred to in Section 7.1(g) has expired). Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Person, the Company shall notify the Parent immediately (orally and in writing) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Parent reasonably and promptly informed on the status and terms of any such proposals or offers and provide the Parent with a copy of any written Acquisition Proposal and all amendments and supplements thereto and the status of any such discussions or negotiations. The Company shall, and shall cause each of its Subsidiaries and each of the Company's and such Subsidiaries' Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than an Acceptable Confidentiality Agreement in circumstances contemplated the Parent and the Merger Sub with respect to any of the foregoing. The Company agrees that it will immediately take the necessary steps to inform promptly the individuals or entities referred to in the final first sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary obligations undertaken in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees thatIn the case of the Company, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shallshall not, and Brushy shall, and it shall cause its Subsidiaries tothe Company Subsidiaries, cause their respective the directors, officers, directorsor employees of the Company or any of Company Subsidiaries, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows attorneys, bankers, accountants, agents or has reason to believe is contemplating making an Acquisition Proposal other advisors (collectively, the "Company Representatives") not to, solicit or encourage inquires or proposals with respect to, or furnish any nonpublic information relating to Brushy or participate in any negotiations or discussions concerning, any acquisition or purchase of all or a substantial portion of the assets of the Company or any of the Company Subsidiaries or any merger or other business combination with the Company or any of the Company Subsidiaries other than as contemplated by the Plan; and the Company shall notify Purchaser immediately if and the terms of any such inquiries or proposals are received by, or any such negotiations or discussions are sought to be initiated with, the Company or any of the Company Subsidiaries. All pending negotiations or discussions by Company Representatives have been terminated and the Company's confidential information has been destroyed and returned as provided in the applicable confidentiality agreement. Nothing in the Plan will prevent the Company or the Company Board from: (i) providing information in response to a request therefore by a person who has made an unsolicited bona fide written proposal for an acquisition or purchase of the type described in the preceding sentence; or (iiiii) accept engaging in any negotiations or discussions with any person who has made such an Acquisition Proposal with respect to Brushy or enter into any agreementunsolicited bona fide written proposal, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized if and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything only to the contrary extent that, in this Agreement, Brushy and the Brushy Board may take any actions described each such case referred to in clause (i) or (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counseladvisors) that such the proposal constitutes or is could reasonably likely to result in a Superior Proposal transaction more favorable to the holders of shares, as a group in their capacity as shareholders of Company Common Stock, from a financial point of view than the third party that made Merger or if counsel to the applicable Acquisition Proposal with respect to Brushy and (z) Company advises the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) of Directors that the third party making failure to furnish information, negotiate or enter into appropriate agreements with such Acquisition Proposal has person could reasonably be expected to subject the financial and legal capacity Company's directors to consummate such Acquisition Proposalliability for breach of their fiduciary duties or for failure to conform to the requirements of the securities laws, provided that Brushy shall not deliver any information in each case subject to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken the provisions of ARTICLE VII. If negotiations or discussions are initiated in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)the preceding sentence, the Company agrees that it will notify Purchaser immediately.

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallFactory Point Bancorp shall not, and shall cause its Subsidiaries and any of its Subsidiaries’ officers, directors or employees and any investment banker, financial advisor, attorney, accountant or other representative retained by Factory Point Bancorp or any of its Subsidiaries not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly solicit, initiate or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) ), or take any inquiries regarding other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in any discussions or negotiations withnegotiations, or disclose otherwise communicate in any non-public information relating to Brushy or its Subsidiaries or afford access to the propertiesway with any person (other than Berkshire Hills Bancorp), books or records of Brushy or its Subsidiaries to, any Person that has made regarding an Acquisition Proposal with respect to Brushy or to any Person that BrushyProposal, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into or consummate any agreement, including any letter of intent arrangement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy understanding requiring it to abandon, terminate or fail to consummate the transactions contemplated hereby, (iv) make any public statement critical of Berkshire Hills Bancorp or any of its Subsidiaries, its board of directors, its management or the Merger or (v) join with or assist any person or entity, directly or indirectly, in opposing or making any statement in opposition to, the other transactions contemplated by this AgreementMerger. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in the preceding sentence by Brushy’s any officer, director or employee of Factory Point Bancorp or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by Factory Point Bancorp or any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).5.1

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of permitted pursuant to this Section 5.3(a)), (x5.3) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (yB) that would requirerequiring, intended to cause, or would have which could reasonably be expected to cause the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement (each an "Acquisition Agreement"). Any violation of the foregoing restrictions by Brushy’s any of the Company's Subsidiaries or by any Representative representatives of Brushy the Company or any of its Subsidiaries, whether or not such Representative representative is so authorized and whether or not such Representative representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party if at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and in violation of this Agreement), (y) such proposal constitutes, or the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is could reasonably likely be expected to result in lead to, a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken . Nothing contained in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company's stockholders a position with respect to an Acquisition Proposal pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and Brushy shall, that it shall direct and shall use its best efforts to cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsand its Subsidiaries' employees, agents and other representatives (collectivelyincluding any investment banker, “Representatives”attorney or accountant retained by it or any of its Subsidiaries) not to, (i) directly or indirectly indirectly, initiate, solicit or knowingly encourage or take any other action to facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal offer with respect to Brushya merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole, or 25% or more of the equity securities of, it or any material equity interest in any of its Significant Subsidiaries (any such proposal or offer (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an "Acquisition Proposal"), provided, however, that the Company may take any of the foregoing actions to the extent such actions are in connection with any transaction permitted under Section 4.1(d)(ii), (iid)(iii) participate or engage in discussions (d)(iv) so long as the action is not reasonably expected to interfere with or negotiations with, or disclose delay the consummation of the Merger. The Company further agrees that neither it nor any non-public information relating to Brushy of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or afford access to the properties, books accountant retained by it or records any of Brushy or its Subsidiaries Subsidiaries) not to, directly or indirectly, have any Person that has made an Acquisition Proposal discussion with respect to Brushy or provide any confidential information or data to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would requireProposal, or would have engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal. Notwithstanding the effect of causingforegoing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy Company or its SubsidiariesBoard of Directors shall be permitted to (A) to the extent applicable, whether or not such Representative is so authorized and whether or not such Representative is purporting comply with Rule 14e-2(a) promulgated under the Exchange Act with regard to act on behalf of Brushy an Acquisition Proposal; provided that the Company or its Subsidiaries or otherwise, Board of Directors shall not be deemed permitted to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take recommend any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely unless it would be permitted to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken do so in accordance with this sentence shall constitute a violation of clause (iB) of this Section 5.3(a).below, (B) in

Acquisition Proposals. (a) Brushy agrees thatDuring the Pre-Closing Period, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause each Company Subsidiary and its Subsidiaries to, cause and their respective officersstockholders, directorsAffiliates, investment bankers, attorneys, accountants, financial advisors, agents Representatives and other representatives (collectively, “Representatives”) agents not to, (i) directly or indirectly initiateindirectly, solicit (except with respect to Parent and its Affiliates), (a) solicit, initiate or knowingly encourage any inquiries, offers or facilitate (including by way of furnishing non-public information) proposals from any inquiries regarding or the making or submission of any proposal that constitutesPerson which constitute, or may would reasonably be expected to lead to, the sale or transfer of any of the Company’s securities or all or a material portion of the Company’s assets, whether such transaction would take the form of a sale of capital stock, merger, liquidation, dissolution, reorganization, recapitalization, consolidation, sale of assets or otherwise (an “Acquisition Proposal”), or (b) negotiate with any other Person or enter into any letter of intent or other agreement relating to or contemplating an Acquisition Proposal with respect or disclose to Brushy, any Person any confidential information concerning Acquired Company or its businesses or assets. The Company further agrees that it shall promptly (iiand in no event later than 24 hours after receipt of any Acquisition Proposal) participate or engage notify Parent of the receipt of any Acquisition Proposal (which notice shall be provided orally and in discussions or negotiations withwriting and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof), or disclose any request for non-public information relating to Brushy any Acquired Company or its Subsidiaries or afford for access to the properties, books or records of Brushy or its Subsidiaries to, any Acquired Company by any Person that has made made, or to the Knowledge of the Company intends to make, an Acquisition Proposal Proposal. The Company will, and the Company will cause each Company Subsidiary, and its and their respective stockholders, Affiliates, Representatives and other agents to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(aParent) with respect to any Acquisition Proposal. The Company shall request that all Persons (other than Parent) who executed a third party at any time prior to obtaining confidentiality, non- disclosure or other similar agreement in connection with the Brushy Required Vote if, prior to such vote, (x) Brushy receives consideration of a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such possible Acquisition Proposal, provided that Brushy shall not deliver any return to the Company, or destroy, all confidential information heretofore furnished to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation Person by or on behalf of clause (i) the Company, as promptly as practicable, subject to the terms of this Section 5.3(a)such agreement.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it Neither the Company nor any of its Subsidiaries subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiateindirectly, solicit through any officer, director, agent or knowingly otherwise, solicit, initiate or encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesor offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business) any portion of the assets of, or may reasonably be expected to lead toany equity interest in, an Acquisition Proposal the Company or any of its subsidiaries or any recapitalization, business combination or similar transaction with the Company or any of its subsidiaries (any communication with respect to Brushythe foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, (ii) participate or engage furnish to any other Person any information with respect to, or otherwise cooperate in discussions or negotiations any way with, or disclose any non-public information relating to Brushy assist or its Subsidiaries participate in, facilitate or afford access to the properties, books or records of Brushy or its Subsidiaries toencourage, any effort or attempt by any other Person that has made an Acquisition Proposal with respect to Brushy do or to any Person that Brushy, its Subsidiaries or seek any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreementthe foregoing; provided, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))however, (x) providing forthat, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifpurchase of Shares by the Company pursuant to the Offer, prior to such votethe Company may furnish information to, (x) Brushy receives and negotiate or I-26 27 otherwise engage in discussions with, any party who delivers a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal which was not initiated, solicited, knowingly solicited or encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) Agreement if the Brushy Board determines in good faith by resolution duly adopted a majority vote (i) after consultation with and receipt of advice from its financial advisors and outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a nationally recognized investment banking firm, that such proposal is more favorable to the Company's Shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchasers in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal is not subject to any regulatory approvals that could reasonably be expected to prevent consummation. The Company will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to Brushy any Acquisition Proposal. From and after the execution of this Agreement, the Company shall immediately advise Purchasers in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to an Acquisition Proposal (zincluding the specific terms thereof and the identity of the other party or parties involved) the Brushy Board determines and furnish to Purchasers within 48 hours of such receipt an accurate description of all material terms (including any changes or adjustments to such terms as a result of negotiations or otherwise) of any such written proposal in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the addition to any information provided to any third party making such relating thereto. In addition, the Company shall immediately advise Purchasers, in writing, if the Board shall make any determination as to any Acquisition Proposal has as contemplated by the financial and legal capacity proviso to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this the first sentence shall constitute a violation of clause (i) of this Section 5.3(a)6.06. Notwithstanding the foregoing, the Company shall be permitted to take such actions as may be required to comply with Rule 14e-2 of the Exchange Act. SECTION 6.07.

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries to, and use its reasonable best efforts to cause its and their respective officers, directors, directors or employees or any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant or other representatives representative (collectively, “Representatives”) retained by the Company or any of its Subsidiaries not to, directly or indirectly, (i) directly solicit, initiate or indirectly initiateencourage, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) take any inquiries regarding other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any information or engage in discussions data regarding the Company or negotiations with, or disclose any non-public information relating to Brushy or of its Subsidiaries to any person in connection with or afford access in response to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect or an inquiry or indication of interest that would reasonably be expected to Brushy or lead to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle person (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence Parent, Parent Bank or Representatives of this Section 5.3(a)Parent or Parent Bank), (x) providing for, constituting or relating to regarding an Acquisition Proposal with respect to Brushy or (y) Proposal. Without limiting the foregoing, it is understood that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any any violation of the foregoing restrictions by Brushy’s Subsidiaries or set forth in the preceding sentence by any Representative of Brushy the Company or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf any of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 6.1 by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifforegoing, prior to such votethe receipt of the Requisite Company Vote, (x) Brushy in the event the Company receives a an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.1(a) and its Board of Directors concludes in good faith (after receiving the advice of its outside legal counsel and, with respect to Brushy from such third party (and financial matters, its financial advisors) that such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to lead to a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside legal counsel and, with respect to financial matters, its financial advisors) that failure to take such actions would be reasonably likely to result in a Superior Proposal from violation of its fiduciary duties under applicable Law; provided, that, prior to furnishing any nonpublic information permitted to be provided by the third party that made prior sentence, the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making Company shall have provided such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to Parent and shall have entered into a confidentiality agreement with such third party without entering into an Acceptable on terms no more favorable to such person than the Confidentiality Agreement; and no actions taken in accordance , which confidentiality agreement shall not provide such person with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)any exclusive right to negotiate with the Company.

Acquisition Proposals. The Stockholder shall not take, directly or --------------------- indirectly, (anor shall the Stockholder authorize or permit its representatives or, to the extent within the Stockholder's control, its affiliates to take) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, any action to (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public nonpublic information), solicit, initiate or facilitate any Acquisition Proposal (as defined in the Merger Agreement), (ii) enter into any letter of intent, term sheet or other agreement with respect to any Acquisition Proposal or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an any Acquisition Proposal Proposal; provided, however, that nothing in this -------- ------- Section 3.04 shall prevent the Stockholder, in his capacity as a director or executive officer of the Company from engaging in any activity permitted pursuant to Section 6.04 of the Merger Agreement. The Stockholder shall immediately cease and cause to be terminated all discussions or negotiations commenced prior to the date hereof with respect to Brushyany Acquisition Proposal. From and after the date of the execution of this Agreement, the Stockholder will as promptly as practicable communicate to Parent orally and in writing any inquiry received by him relating to any potential Acquisition Proposal and the material terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that he may receive in respect of any such negotiations or discussions being sought to be initiated with the Company. The Stockholder shall (i) keep Parent fully informed on a prompt basis with respect to any developments with respect to the foregoing and (ii) participate provide to Parent as soon as practicable after receipt or engage in discussions delivery thereof with copies of all correspondence and other written material sent or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access provided to the propertiesCompany from any third party in connection with any Acquisition Proposal. In addition, books or records each of Brushy or its Subsidiaries to, any Person the Stockholders who is also an employee of the Company agrees that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or he will not enter into any agreementemployment, including consulting or similar arrangement (or participate in any letter of intent negotiations or agreement in principle (discussions concerning such arrangements) with any person other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger Parent or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting Company prior to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach termination of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)its terms.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallThe Company shall not, and shall cause not authorize any of its Subsidiaries or Representatives to, cause their respective officersand will not permit any of its Subsidiaries or Representatives to, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly solicit, initiate or indirectly initiateknowingly encourage, solicit or take any other action to facilitate, the submission of any Acquisition Proposal or (ii) participate in or knowingly encourage any discussion or facilitate (including by way of furnishing negotiations regarding, or furnish to any person any non-public information) information with respect to, or take any other action to facilitate any inquiries regarding or the making or submission of of, any proposal that constitutes, constitutes or may reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal; provided, (ii) participate however, that the foregoing shall not prohibit the Board of Directors of the Company or engage in the Special Committee from furnishing information to, or entering into discussions or negotiations with, any person or disclose any non-public information relating to Brushy or its Subsidiaries or afford access entity that makes an unsolicited Acquisition Proposal prior to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach approval of this Agreement by Brushy. Notwithstanding anything the Company Stockholders if, and only to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such voteextent that, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (yA) the Brushy Board of Directors of the Company or the Special Committee, after consultation with its outside legal counsel, determines in good faith by resolution duly adopted (after consultation that the failure to take such action would be inconsistent with its financial advisors and outside legal counselfiduciary obligations to the Company Stockholders under applicable Delaware Law, (B) prior to taking such action, the Company receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity (provided, that if the Company enters into such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal confidentiality agreement with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has that contains provisions that are less protective in any material respect to the Company than the Confidentiality Agreement, the Company agrees to amend the Confidentiality Agreement so as to provide Crescent the benefit of such less protective provisions), and (C) the Board of Directors of the Company or the Special Committee concludes in good faith, based upon discussions with its independent financial advisor, that the Acquisition Proposal is reasonably expected to lead to a Superior Proposal. The Company shall provide prompt (but in no event less than two business days after receipt of any Acquisition Proposal or inquiry) oral and legal capacity written notice to consummate Parent of (a) the receipt of any such Acquisition Proposal or any inquiry which may reasonably be expected to lead to any Acquisition Proposal, (b) the material terms and conditions of such Acquisition Proposal or inquiry, (c) the identity of such person or entity making any such Acquisition Proposal or inquiry, and (d) the Company's intention to furnish information to, or enter into discussions or negotiations with, such person or entity. The Company shall continue to keep Parent reasonably informed of the status and details of any such Acquisition Proposal or inquiry. All information provided that Brushy to Parent under this Section 5.9 shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken be kept confidential by Parent in accordance with this sentence shall constitute a violation the terms of clause (i) of this Section 5.3(a)the Confidentiality Agreement.

Acquisition Proposals. (a) Brushy agrees thatNone of the Shareholders shall take, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, or authorize or permit any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant or other representatives (collectivelyPerson retained by or acting for or on behalf of the Shareholders to take, “Representatives”) not todirectly or indirectly, any action to initiate, assist, solicit, negotiate, or encourage any offer, inquiry or proposal from any Person other than HMAUF: (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or relating to the making or submission acquisition of any proposal that constitutescapital stock or other voting securities of Honesty Group or any of its Subsidiaries or any assets of Honesty Group or any of its Subsidiaries other than sales of assets in the ordinary course of business whether such acquisition is structured as a merger, consolidation, share exchange or may reasonably be expected to lead to, other business combination (an “Acquisition Proposal with respect to Brushy, Proposal”); (ii) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Acquisition Proposal; (iii) to participate or engage in discussions or negotiations with, with or disclose to furnish or cause to be furnished any material non-public information relating with respect to Brushy the Shareholders, Honesty Group or its Subsidiaries or afford access to the properties, assets and properties or books or and records of Brushy Honesty Group or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that BrushyPerson, its Subsidiaries except as provided in Section 6.1, who any of the Shareholders or any of such Person acting for or on their respective Representatives behalf knows or has reason to believe is contemplating making an in the process of considering any Acquisition Proposal relating to Honesty Group or any of its Subsidiaries; (iv) to participate in any discussions or negotiations regarding, furnish any material non-public information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to Brushy do or seek any of the foregoing, or (iiiv) accept an Acquisition Proposal to take any other action that is inconsistent with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) Transactions and that would require, or would have has the effect of causing, Brushy to abandon, terminate or fail to consummate avoiding the Merger or the other transactions Closing contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)hereby.

Acquisition Proposals. (a) Brushy agrees thatThe Company shall not, except as expressly contemplated by this Agreementnor shall it authorize or permit any officer, neither it nor its Subsidiaries shalldirector or employee of, and Brushy shallor any investment banker, and shall cause attorney or other advisor or representative of, the Company or any of its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly solicit, initiate or indirectly initiateencourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, solicit or knowingly encourage furnish to any person any information with respect to, or take any other action to facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal; provided, (ii) participate however, that nothing contained in this Section 5.9 shall prohibit the Company Board from furnishing information to, or engage in entering into discussions or negotiations with, any person or disclose any non-public information relating to Brushy or its Subsidiaries or afford access entity that makes an unsolicited Acquisition Proposal after the date hereof if, and only to the propertiesextent that, books or records (a) the Company Board, after consultation with and based upon the advice of Brushy or outside counsel, concludes in good faith that a failure to do so could reasonably be expected to result in a breach of its Subsidiaries to, any Person that has made an Acquisition Proposal with respect fiduciary duties to Brushy or to any Person that Brushy, its Subsidiaries or any the shareholders of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or the Company under applicable law and (iiib) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), Company (x) providing for, constituting or relating provides reasonable notice to an Acquisition Proposal with respect Nipsco to Brushy or the effect that it is taking such action and (y) receives from such person or entity an executed confidentiality agreement not less favorable to the Company than the Confidentiality Agreement, except that would requiresuch confidentiality agreement shall not prohibit such person or entity from making an unsolicited Acquisition Proposal to the Company Board. Notwithstanding anything in this Agreement to the contrary, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation Company shall promptly advise Nipsco orally and in writing of the foregoing restrictions receipt by Brushy’s Subsidiaries it (or by any Representative of Brushy the other entities or persons referred to above) after the date hereof of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person or entity making any such Acquisition Proposal or inquiry, provided that the Company shall have no obligation to disclose the identity of such person or entity if such disclosure would violate the terms of any agreement outstanding on the date hereof with such person or entity, or the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that such disclosure would violate its Subsidiaries, whether fiduciary duties or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf would be otherwise inconsistent with applicable law. For purposes of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take "Acquisition Proposal" means any actions described in clause (ii) of this Section 5.3(a) bona fide proposal with respect to a third party at any time prior to obtaining merger, consolidation, share exchange or similar transaction involving the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries Company or any of their respective Representatives after its Subsidiaries, or any purchase of all or a substantial portion of the date and in violation assets or shares of this Agreement)the Company or any of its Subsidiaries, or any other business combination (yincluding without limitation the acquisition of an equity interest therein) involving the Brushy Board determines in good faith by resolution duly adopted (after consultation with Company or any of its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from Subsidiaries, other than the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).transactions contemplated hereby. 5.10

Acquisition Proposals. From the date hereof until the earlier to occur of the Closing Date or termination of this Agreement pursuant to Section 9.01 hereof, the Company and the Principal Shareholders shall not, and shall each cause their respective Affiliates not to, directly or indirectly, through any equity holder, officer, director, trustee, agent or otherwise (ai) Brushy agrees thatsolicit, except initiate or encourage the submission of inquiries, proposals or offers from any Person other than Purchaser, its Affiliates or representatives relating in any way to any investment in the Company or any Company Subsidiary, any acquisition of direct or indirect control of the Company or any Company Subsidiary, the purchase of any of the Company's or any Company Subsidiary's securities, any significant amount of assets or businesses, any lease, exchange, mortgage, pledge, transfer or other disposition of any significant amount of the assets of the Company or any Company Subsidiary, or any business combination or other transaction involving the Company or any Company Subsidiary, including without limitation, any merger, consolidation, acquisition, tender or exchange offer purchase, re capitalization, reorganization, dissolution, liquidation, or issuance or disposition of any nature or other transaction which would involve the Company or any Company Subsidiary or any other of the entities or assets expected to be involved in the Merger or which would have a similar financial result as expressly contemplated the Merger (each, an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding an Acquisition Proposal or furnish to any Person any information for any purpose inconsistent with the foregoing, (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing or (iv) formulate or disclose any intention, plan or arrangement inconsistent with the foregoing. The Company and the Principal Shareholders shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, and shall use commercially reasonable efforts to cause its employees, agents and representatives of obligations undertaken in this AgreementSection 5.07. The Company and the Principal Shareholders will (i) immediately notify Purchaser orally and in writing if any discussions or negotiations are sought to be initiated, neither it nor its Subsidiaries any inquiry or proposal is made, or any information is requested by any Person with respect to any Acquisition Proposal or proposal which could lead to an Acquisition Proposal, (ii) immediately notify Purchaser of all material terms of any Acquisition Proposal including the identity of the Person making the Acquisition Proposal or the request for information, and (iii) in the event a third party makes a written offer or proposal to the Company or any of the Principal Shareholders with respect to any Acquisition Proposal, the Company or a Principal Shareholder, as the case may be, will promptly send to Purchaser a copy of any such written offer or proposal. The Company shall, and Brushy shall, and shall cause will use commercially reasonable efforts to ensure that its Subsidiaries to, cause their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, agents accountants and other representatives (collectivelyagents, “Representatives”) not toimmediately cease and cause to be terminated all discussions and negotiations that have taken place prior to the date hereof, (i) directly or indirectly initiateif any, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) with any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal Persons with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by this AgreementSection 5.2, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their respective directors, officers, directorsemployees, other Affiliates, investment bankers, attorneys, accountants, financial advisors, agents accountants and other advisors or representatives (collectively, “Representatives”) not to, directly or indirectly (i) directly or indirectly initiate, solicit or knowingly facilitate or knowingly encourage any inquiries, discussions or facilitate (including by way of furnishing non-public information) any inquiries regarding requests with respect to or the making or submission of any proposal or offer that constitutes, constitutes or may would reasonably be expected to lead to, to an Acquisition Proposal with respect to Brushy(an “Inquiry”), (ii) participate or engage in or otherwise participate in any discussions or negotiations withregarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, or disclose provide any non-public information relating to Brushy or its Subsidiaries or afford access to the its properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or non‑public information to any Person that Brushy, its Subsidiaries relating to the Company or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal its Subsidiaries in connection with respect to Brushy or the foregoing, (iii) accept an Acquisition Proposal with respect to Brushy or enter into any other acquisition agreement, including any option agreement, joint venture agreement, partnership agreement, letter of intent intent, term sheet, merger agreement or similar agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated Agreement) with respect to an Acquisition Proposal (an “Alternative Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Acquisition Proposal, (v) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the final sentence certificate of this Section 5.3(a))incorporation or bylaws of the Company inapplicable to any transactions contemplated by any Acquisition Proposal or (vi) authorize, commit to, agree or publicly propose to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their directors, officers and employees and shall instruct its Affiliates and other Representatives to, (x) providing forimmediately cease all solicitations, constituting or relating discussions and negotiations with any other Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof and request that each such Person promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with respect to Brushy or any such Acquisition Proposal and (y) that would requirenot terminate, amend, release or would have the effect modify any provision of causing, Brushy any standstill agreement to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries which it or any of their respective Representatives after its Subsidiaries is a party, except that the Company may grant a limited waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow for a confidential Acquisition Proposal to be made to the Company or the Company Board so long as the Company promptly (and in any event within twenty-four (24) hours thereafter) notifies Parent thereof (including the identity of such counterparty (except to the extent prohibited by any Contract in effect as of the date and hereof)) after granting any such limited waiver, amendment or release as provided in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a5.2(e).

Acquisition Proposals. (a) Brushy agrees thatThe Company shall promptly notify Parent and the Purchaser if any proposals are received by, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesinformation is requested from, or may reasonably any negotiations or discussions are sought to be expected to lead to, an Acquisition Proposal initiated or continued with respect to Brushy, (ii) participate the Company or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows Representatives, in each case in connection with any Acquisition Proposal (as hereinafter defined) or has reason to believe is contemplating the possibility or consideration of making an Acquisition Proposal with respect to Brushy or (iii) accept an "Acquisition Proposal Interest") indicating, in connection with respect to Brushy or enter into any agreementsuch notice, including any letter the name of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Person indicating such Acquisition Proposal with respect to Brushy Interest and the material terms and conditions of any proposals or (y) offers. The Company agrees that would requireit shall keep Parent and the Purchaser reasonably informed, or would have the effect of causingon a current basis, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by status and terms of any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by BrushyAcquisition Proposal Interest. Notwithstanding anything to the contrary As used in this Agreement, Brushy and "Acquisition Proposal" means any tender or exchange offer involving the Brushy Board may take Company or any actions described of its Subsidiaries, any proposal for a merger, consolidation or other business combination involving the Company or any of its Subsidiaries, any proposal or offer to acquire in clause any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company or any of its Subsidiaries (ii) other than immaterial or insubstantial assets or inventory in the ordinary course of this Section 5.3(a) business or assets held for sale), any proposal or offer with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal recapitalization or restructuring with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged the Company or facilitated by Brushy or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal offer with respect to Brushy and (z) any other transaction similar to any of the Brushy Board determines in good faith by resolution duly adopted (after consultation foregoing with respect to the Company or any of its financial advisors and outside legal counsel) that Subsidiaries other than pursuant to the third party making such Acquisition Proposal has the financial and legal capacity Transactions to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information be effected pursuant to such third party without entering into an Acceptable Confidentiality this Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by Upon execution of this Agreement, neither it nor the Company and its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other representatives advisors will immediately cease any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal (collectivelyas hereinafter defined). The Company may, “Representatives”) not to, (i) directly or indirectly initiateindirectly, solicit furnish information and access, in each case only in response to requests that were not solicited by the Company (or knowingly encourage any officer, director, employee, agent or facilitate advisor on its behalf) after the date of this Agreement, to any corporation, partnership, person or other entity or group (including by way each, a "Potential Acquiror") pursuant to confidentiality agreements, and may participate in discussions and negotiate with a Potential Acquiror concerning any merger, sale of furnishing non-public information) assets, sale of shares of capital stock or similar transaction involving the Company or any inquiries regarding Subsidiary or division of the making Company, if such Potential Acquiror has submitted a written proposal to the Board of Directors relating to any such transaction, and the Board of Directors determines in good faith after consultation with independent legal counsel that the failure to provide such information or submission of access or to engage in such discussions or negotiations would be inconsistent with their fiduciary duties to the Company's shareholders under applicable law. The Company shall notify Acquiror immediately if any proposal that constitutessuch request or proposal, or may any inquiry or contact with any Person with respect thereto, is made and shall keep Acquiror apprised of all developments that could reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated culminate in the final sentence Board withdrawing, modifying or amending its recommendation of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or and the other transactions contemplated by this Agreement. Any violation The Company has entered into confidentiality agreements with other third parties substantially in the form of the foregoing restrictions by Brushy’s Subsidiaries or by Acquiror Confidentiality Agreement. The Company agrees not to release any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at from, or waive any time prior provision of, any confidentiality or standstill agreement to obtaining which the Brushy Required Vote ifCompany is a party unless, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any in the opinion of their respective Representatives after the date and in violation Board of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (Directors after consultation with its financial advisors and outside independent legal counsel) that , the failure to provide such proposal constitutes release or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation waiver would be inconsistent with its financial advisors and outside legal counsel) that fiduciary duties to the third party making such Acquisition Proposal has Company's shareholders under applicable law. For purposes of this section 5.04, the financial and legal capacity to consummate such term "Acquisition Proposal" means any proposal or offer for a merger, provided that Brushy shall not deliver consolidation or similar combination (other than the Merger contemplated by this Agreement) involving the Company or any information Subsidiary and any Potential Acquiror, or any proposal or offer to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken acquire a significant equity interest in accordance with this sentence shall constitute the Company, or a violation significant portion of clause (i) the real estate or mixer division assets of this Section 5.3(a).the Company by a Potential Acquiror. 13 17 5.05

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any person in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of permitted pursuant to this Section 5.3(a)), (x6.2) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (yB) that would requirerequiring, intended to cause, or would have which could reasonably be expected to cause the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger merger or the any other transactions transaction contemplated by this Agreement (each an "Acquisition Agreement"). Any violation of the foregoing restrictions by Brushy’s any of the Company's Subsidiaries or by any Representative representatives of Brushy the Company or any of its Subsidiaries, whether or not such Representative representative is so authorized and whether or not such Representative representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Board its board of directors may take any actions described in clause (ii) of this Section 5.3(a6.2(a) with respect to a third party if at any time prior to obtaining the Brushy Required Vote if, prior to such vote, Effective Time (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and in violation of this Agreement), (y) such proposal constitutes, or the Brushy Board Company's board of directors determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is could reasonably likely be expected to result in lead to, a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; . Notwithstanding the foregoing, the Company shall be entitled to waive any "standstill" or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and no actions taken in accordance with this sentence any such waiver shall not constitute a violation of clause (i) breach of this Section 5.3(a)6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company's shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.

Acquisition Proposals. (a) Brushy agrees thatThe Company shall not, except as expressly contemplated by this Agreementnor shall it authorize or permit any officer, neither it nor its Subsidiaries shalldirector or employee of, and Brushy shallor any investment banker, and shall cause attorney or other advisor or representative of, the Company or any of its Subsidiaries to, cause their respective officersdirectly or indirectly, directors(a) solicit, investment bankersinitiate or encourage the submission of any Acquisition Proposal (as defined below) or (b) participate in any discussions or negotiations regarding, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not or furnish to any person any information with respect to, (i) directly or indirectly initiate, solicit or knowingly encourage or take any other action to facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal; provided, (ii) participate however, that nothing contained in this Section 5.7 shall prohibit the Company Board from furnishing information to, or engage in entering into discussions or negotiations with, any person or disclose any non-public information relating to Brushy or its Subsidiaries or afford access entity that makes an unsolicited Acquisition Proposal after the date hereof if, and only to the propertiesextent that, books (i) the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that a failure to do so would result in a breach of its fiduciary duties to the shareholders of the Company under applicable law and (ii) the Company (y) provides reasonable notice to Buyer to the effect that it is taking such action and (z) receives from such person or records of Brushy entity an executed confidentiality agreement not less favorable to the 21 26 Company than the Confidentiality Agreement, except that such confidentiality agreement shall not prohibit such person or its Subsidiaries to, any Person that has made entity from making an unsolicited Acquisition Proposal with respect to Brushy the Company Board. Notwithstanding anything in this Agreement to the contrary, the Company shall promptly advise Buyer orally and in writing of the receipt by it (or by any of the other entities or persons referred to above) after the date hereof of any Person that BrushyAcquisition Proposal, its Subsidiaries or any of their respective Representatives knows or has reason inquiry that could reasonably be expected to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person or entity making any such Acquisition Proposal or inquiry, provided that the Company shall have no obligation to disclose the identity of such person or entity if such disclosure would violate the terms of any agreement outstanding on the date hereof with respect to Brushy such person or (y) that would requireentity, or the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that such disclosure would have the effect of causing, Brushy to abandon, terminate violate its fiduciary duties or fail to consummate the Merger or the other transactions contemplated by this Agreementwould be otherwise inconsistent with applicable law. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary As used in this Agreement, Brushy and the Brushy Board may take "Acquisition Proposal" shall mean any actions described in clause (ii) of this Section 5.3(a) bona fide proposal with respect to a third party at any time prior to obtaining merger, consolidation, share exchange or similar transaction involving the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries Company or any of their respective Representatives after its Material Subsidiaries, or any purchase of all or a substantial portion of the date and in violation assets or shares of this Agreement)the Company or any of its Material Subsidiaries, or any other business combination (yincluding without limitation the acquisition of an equity interest therein) involving the Brushy Board determines in good faith by resolution duly adopted (after consultation with Company or any of its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from Material Subsidiaries, other than the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).transactions contemplated hereby. 5.8

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it Neither CCI nor its Subsidiaries shalldirectors, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, legal counsel, accountants and other agents and other representatives shall (collectivelya) encourage, “Representatives”) not toinitiate or solicit, (i) directly or indirectly initiateindirectly, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesproposals by, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, any third party (other than Pentair and Pentair Subsidiary) concerning any merger, consolidation, sale of assets, tender offer, sale of shares or similar transaction involving CCI or any significant assets of CCI, other than the Merger (each an "Acquisition Proposal"), or (b) disclose directly or indirectly to any non-public information relating person preparing to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made make an Acquisition Proposal any confidential information regarding CCI, or(c) enter into any understanding, agreement or commitment with respect any third party providing for an acquisitive transaction, equity investment or sale of any significant assets of CCI. Notwithstanding the foregoing, the Board of Directors or any committee thereof appointed for purposes of the foregoing (a "Committee"), officers, employees, representatives and agents of CCI may (I) take action upon receipt of the advice of special legal counsel that such action is advisable in order to Brushy fulfill the fiduciary duties of the Board or the Committee, and (ii) provide confidential information regarding CCI to a potential purchaser upon the prior written request of such purchaser whom the Board or Committee reasonably believes (A) is qualified and creditworthy, (B) will not use such information to the competitive disadvantage of CCI and (C) intends to make a serious offer which may result in a transaction more favorable to the shareholders of CCI than the consideration payable in connection with the Merger; provided that such disclosure is made subject to an appropriate confidentiality agreement, and the request does not arise as a result of any Person that Brushy, its Subsidiaries solicitation for expression of interest by CCI or any of their respective Representatives knows its directors, officers, employees, financial advisors, legal counsel, accountants or has reason to believe is contemplating making an other agents and representatives. CCI will notify Pentair immediately if any Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative request for confidential information is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwisereceived, shall be deemed inform Pentair if CCI's Board or Committee has been advised by special legal counsel to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and consider such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or in order to fulfill the fiduciary duties of the Board of Directors and shall provide to Pentair such information regarding any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith or request for information as Pentair may reasonably request. No action contemplated or permitted by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)4.8 shall in any manner be construed or deemed to diminish, relieve or release any obligations of CCI or Pentair to pay a termination fee or expense reimbursement pursuant to Sections 10.2, 10.3 or 10.4 below.

Acquisition Proposals. (a) Brushy agrees thatDuring the Interim Period, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries not to, and shall instruct and use reasonable best efforts to cause its and their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) Representatives not to, (ia) directly or indirectly initiate, solicit solicit, enter into or knowingly encourage continue discussions, negotiations or facilitate (including by way of furnishing transactions with, or respond to any inquiries or proposals by, any Person with respect to, or provide any non-public information) information or data concerning the Company or any inquiries regarding or of the making or submission of Company’s Subsidiaries to any proposal that constitutes, or may reasonably be expected to lead Person relating to, an Acquisition Proposal with respect (other than to Brushy, (iiinform such Person of the Company’s obligations pursuant to this Section 7.5) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford to any Person access to the business, properties, books assets, information or records personnel of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries the Company or any of their respective Representatives knows or has reason to believe is contemplating making the Company’s Subsidiaries in connection with an Acquisition Proposal with respect to Brushy or Proposal, (iiib) accept an Acquisition Proposal with respect to Brushy or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent intent, memorandum of understanding or agreement in principle (principle, or any other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or agreement relating to an Acquisition Proposal, (c) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state for purposes of facilitating an Acquisition Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or (e) resolve or agree to do any of the foregoing. The Company shall promptly (and in any event within two (2) Business Days after receipt thereof) notify Acquiror in writing of the receipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes an Acquisition Proposal and keep Acquiror reasonably informed of any material developments with respect to Brushy any such inquiry, proposal, offer, request for information or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or including any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(amaterial changes thereto).

Acquisition Proposals. (a) Brushy 3.3.1. After the execution of this Agreement and prior to the Effective Time, the Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of its or any of its Subsidiaries' officers or directors shall, and Brushy shall, the Company shall direct and shall use its best efforts to cause its Subsidiaries to, cause their respective and its Subsidiaries' officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, agents and or other representatives (collectively, “the "Representatives”") not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries by any Person not a party to this Agreement or the making of any proposal or offer by any Person not a party to this Agreement with respect to, a merger, reorganization, share exchange, business combination, liquidation, dissolution, recapitalization, consolidation or similar transaction involving the Company or any purchase of, or offer to purchase, (i) directly 10% or indirectly initiate, solicit more of the outstanding shares of the capital stock of the Company or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutescapital stock of, or may reasonably be expected to lead toother equity or voting interests in, an Acquisition Proposal with respect to Brushyany of the Company's Subsidiaries, or (ii) participate assets or businesses of the Company and its Subsidiaries taken as a whole that constitute or represent 10% or more of the assets or businesses of the Company and its Subsidiaries (any indication of interest in any of the foregoing or inquiry, proposal or offer relating to or reasonably likely to lead to any of the foregoing being an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of its or any of its Subsidiaries' officers or directors will, and that it will direct and use its best efforts to cause its Representatives not to, directly or indirectly, engage in or continue any discussions or negotiations with, with or disclose provide any non-public confidential information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or data to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason not a party to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality this Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would requireengage in any negotiations concerning an Acquisition Proposal, or would have otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Notwithstanding the effect of causingforegoing, Brushy prior to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation receipt of the foregoing restrictions by Brushy’s Subsidiaries or by Company Requisite Vote, in the event that (i) the Company shall receive an Acquisition Proposal and has not at any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach time violated the terms of this Agreement by Brushy. Notwithstanding anything to the contrary in this AgreementSection 3.3.1, Brushy and the Brushy Board may take any actions described in clause (ii) the Board of this Section 5.3(a) with respect to a third party at any time prior to obtaining Directors of the Brushy Required Vote if, prior to such vote, Company determines in its good faith judgment (x) Brushy receives a bona fide written after receiving the advice of its financial advisor that this Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from and (y) after receiving the third party advice of its outside counsel that, in light of this Acquisition Proposal, if the Company fails to participate in discussions or negotiations with, or furnish confidential information or data to, the Person making the Acquisition Proposal, that the Board of Directors would be in violation of its fiduciary duties under applicable Law and (iii) after giving Parent three Business Days notice of its intention to do so, the Company may, prior to the receipt of the Company Requisite Vote, engage in discussions and/or negotiations with the Person that made the applicable Acquisition Proposal with respect and/or furnish confidential information and data to Brushy that Person pursuant to a customary confidentiality agreement containing terms no less restrictive than those set forth in the Confidentiality Agreement previously entered into by the Company and Parent (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) "Confidentiality Agreement"); provided that a copy of all written information furnished to the third party making such Person that made the Acquisition Proposal has the financial and legal capacity is promptly provided to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) Parent. For purposes of this Section 5.3(a).Agreement, a "

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any person in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of permitted pursuant to this Section 5.3(a)), (x5.3) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (yB) that would requirerequiring, intended to cause, or would have which could reasonably be expected to cause the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by Brushyany of the Company’s Subsidiaries or by any Representative representatives of Brushy the Company or any of its Subsidiaries, whether or not such Representative representative is so authorized and whether or not such Representative representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party if at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (x) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and in violation of this Agreement), (y) such proposal constitutes, or the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is could reasonably likely be expected to result in lead to, a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken . Nothing contained in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to an Acquisition Proposal pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. During the period (athe "Pre- Closing Covenant Period") Brushy agrees that, except as expressly contemplated by between the date hereof and the earliest to occur of the Closing or the termination of this Agreement, neither it nor the Seller will not, and will cause the Company and its Subsidiaries shallnot to, and Brushy shall, and shall cause the Seller will instruct its Subsidiaries to, cause their respective officers, directors, investment bankersemployees, attorneysagents, accountants, financial advisors, agents and advisors or other representatives (collectively, “Representatives”including those of the Company and its Subsidiaries) not to, (i) directly solicit, initiate or indirectly initiateencourage any proposals or offers from any person or entity relating to, solicit or knowingly encourage enter into (or facilitate (including by way of furnishing non-public informationcontinue) any inquiries regarding discussions concerning, any acquisition or purchase of all or a material amount of the making or submission of any proposal that constitutesassets of, or may reasonably be expected to lead toany securities of, an Acquisition Proposal with respect to Brushyor any merger, consolidation or business combination with, the Company or any Subsidiary (any such transaction, a "Competitive Transaction"), (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))regarding a Competitive Transaction, (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(aiii) with respect to a third party at any time prior effort or attempt by any person or entity to obtaining do or seek any of the Brushy Required Vote if, prior to such voteforegoing, (xa) Brushy receives a bona fide written Acquisition Proposal participate in any discussions or negotiations, (b) furnish to any other person or entity any confidential information with respect to Brushy from the Company, any Subsidiary or the Business, or (c) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any such third party effort. During the Pre-Closing Covenant Period, the Seller and the Company will promptly notify the Buyer in the event of any proposal or offer in respect of a Competitive Transaction. Notwithstanding the foregoing, this Section 5.7 shall not restrict or prohibit the Seller or any its Affiliates (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries other than the Company or any of their respective Representatives after its Subsidiaries) from (i) providing third parties with information regarding the date Seller and its Affiliates, including information which may include information relating to the Company and its Subsidiaries, in violation the course of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes taking or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal not taking any action with respect to Brushy and a transaction solely relating to the Seller or any of its Affiliates (zother than the Company or any of its Subsidiaries), or (ii) soliciting, initiating, encouraging or considering any proposals or offers from any person or entity relating to, or entering into, (or continuing) any discussions concerning, any acquisition or purchase of all or a material amount of the Brushy Board determines in good faith by resolution duly adopted assets of, or any securities of, or any merger, consolidation or business combination with, the Seller or any of its Affiliates (after consultation with other than the Company or any of its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(aSubsidiaries).

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of their respective directors, officers or financial or legal advisors shall, and Brushy shallthat it shall direct and use its best efforts to cause the Company's and its Subsidiaries' other employees, advisors, agents, representatives and shall cause its Subsidiaries other intermediaries not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesor offer from or by any Person (other than Parent) with respect to, or may reasonably be expected a transaction to lead toeffect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries or any purchase or sale of 10% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company and its Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or any of its Significant Subsidiaries that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning securities representing 10% or more of the total voting power of the Company (or of the surviving parent entity in such transaction) or any of its Significant Subsidiaries (any such proposal, offer or transaction (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an "Acquisition Proposal with respect to Brushy, Proposal"); (ii) participate or engage in discussions or negotiations with, or disclose enter into any non-public information relating to Brushy agreement binding on the Company or its Subsidiaries that would approve or afford access endorse, or propose publicly to the properties, books approve or records of Brushy or its Subsidiaries toendorse, any Person that has made an Acquisition Proposal or in connection with respect to Brushy or to any Person that BrushyAcquisition Proposal, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in require the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or any of the other transactions contemplated by under this Agreement; or (iii) enter into or participate in any discussions or negotiations in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal, or furnish to any Person any nonpublic information with respect to its business, properties or assets in connection with any Acquisition Proposal or inquiry with respect to an Acquisition Proposal. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) For purposes of this Section 5.3(a6.4, the term "Person" shall also include any "group," as defined in Section 13(d) with respect to a third party at any time prior to obtaining of the Brushy Required Vote ifExchange Act, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries but shall exclude Parent or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)Subsidiaries.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallThe Company shall not, and shall cause each of its Subsidiaries Subsidiaries, and its and any such Subsidiaries' respective Representatives not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly initiate, solicit solicit, encourage or knowingly encourage or facilitate (including by way of furnishing non-public informationinformation or assistance) any inquiries regarding or expressions of interest or the making or submission of any proposal or offer that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal to (x) a proposal or offer with respect to Brushya merger, reorganization, share exchange, recapitalization, liquidation, dissolution, consolidation or similar transaction involving, or any purchase or series of related purchases directly or indirectly (including, by way of lease, exchange, sale, mortgage, pledge, tender offer, exchange offer or otherwise, as may be applicable), of 5% or more of the assets (based on fair market value) or any equity interests (in economic or voting power) in, the Company or any of its Subsidiaries, (y) a breach of this Agreement or the Stockholders Agreement or any interference with the completion of the Merger or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing (any of the foregoing inquiries, expressions of interest, proposals, or offers being referred to in this Agreement as an "Acquisition Proposal"), (ii) participate or engage in discussions or any negotiations withconcerning, or disclose provide any non-public confidential information relating to Brushy or its Subsidiaries data to, or afford access to the properties, books or records of Brushy or its Subsidiaries tohave any discussions with, any Person that has made relating to an Acquisition Proposal with respect to Brushy Proposal, or to any Person that Brushyotherwise facilitate the making of, its Subsidiaries or any of their respective Representatives knows effort or has reason attempt to believe is contemplating making make or implement, an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept agree to or recommend to its stockholders any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 shall prevent the Company from (i), based on the advice of outside legal counsel, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or providing any other legally required disclosure to the stockholders of the Company (provided that, except as otherwise permitted in this Section 5.3, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to Brushy the Merger or enter approve or recommend, or propose to approve or recommend, an Acquisition Proposal), (ii) prior to receipt of the Required Company Vote, and subject to compliance by the Company with the immediately following sentence, providing information to, or engaging in any negotiations or discussions with, any Person who has made an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the Board of Directors of the Company determines, in good faith after consultation with, and based upon the advice of, outside legal counsel, that providing such information and engaging in such discussions or negotiations is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law, (B) such Acquisition Proposal is not subject to any financing contingencies, (C) the Board of Directors determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with the Company Financial Advisor, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any agreementsuch more favorable Acquisition Proposal, including a "Superior Proposal") and (D) prior to taking such action and furnishing any letter information to any such party, the Company (x) provides reasonable notice to the Parent to the effect that it is taking such action, (y) provides such information to the Parent (if and to the extent it has not already done so), and (z) shall have entered into a confidentiality/standstill agreement on customary terms as advised by outside legal counsel, and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, or (iii) prior to receipt of intent the Required Company Vote, recommending such a Superior Proposal to the holders of Company Common Stock and withdrawing the prior recommendation of this Agreement, if and only to the extent that, in each case referred to in clause (ii) or agreement (iii) above, the Board of Directors of the Company determines, in principle good faith after consultation with, and based upon the advice of, outside legal counsel, that taking such action is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law; provided, however, the Board of Directors of the Company may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) an Acquisition Proposal unless such an Acquisition Proposal is a Superior Proposal (and the Company shall have first terminated this Agreement in accordance with, and complied with its obligations set forth in, Section 7.1(g) and the time period referred to in Section 7.1(g) has expired). Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal by such Person, the Company shall notify the Parent immediately (orally and in writing) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Parent reasonably and promptly informed on the status and terms of any such proposals or offers and provide the Parent with a copy of any written Acquisition Proposal and all amendments and supplements thereto and the status of any such discussions or negotiations. The Company shall, and shall cause each of its Subsidiaries and each of the Company's and such Subsidiaries' Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties other than an Acceptable Confidentiality Agreement in circumstances contemplated the Parent and the Merger Sub with respect to any of the foregoing. The Company agrees that it will immediately take the necessary steps to inform promptly the individuals or entities referred to in the final first sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary obligations undertaken in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees thatThe Company will notify the --------------------- Purchaser immediately if any proposals are received by, except as expressly contemplated by this Agreementany information is requested from, neither it nor or any negotiations or discussions are sought to be initiated or continued with the Company or its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, employees, investment bankers, attorneys, accountantsaccountants or other agents, financial advisors, agents and other representatives in each case in connection with any Takeover Proposal (collectively, “Representatives”as defined below) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the possibility or consideration of making or submission a Takeover Proposal ("Takeover Proposal Interest") indicating, in -------------------------- connection with such notice, the name of the Person indicating such Takeover Proposal Interest and the terms and conditions of any proposal proposals or offers. The Company agrees that constitutesit will immediately cease and cause to be terminated any existing activities, discussions or may reasonably be expected to lead tonegotiations, an Acquisition Proposal if any, with any parties conducted heretofore with respect to Brushyany Takeover Proposal Interest. The Company agrees that it shall keep Parent informed, (ii) participate or engage in discussions or negotiations withon a current basis, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by status and terms of any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by BrushyTakeover Proposal Interest. Notwithstanding anything to the contrary As used in this Agreement, Brushy and "Takeover -------- Proposal" -------- 47 shall mean any tender or exchange offer involving the Brushy Board may take Company, any actions described proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in clause any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company (ii) other than immaterial or insubstantial assets or inventory in the ordinary course of this Section 5.3(a) business or assets held for sale), any proposal or offer with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal recapitalization or restructuring with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries the Company or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal offer with respect to Brushy and (z) any other transaction similar to any of the Brushy Board determines in good faith by resolution duly adopted (after consultation foregoing with its financial advisors and outside legal counsel) that respect to the third party making such Company other than the Xxxxxx Acquisition Proposal has or pursuant to the financial and legal capacity transactions to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information be effected pursuant to such third party without entering into an Acceptable Confidentiality this Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees thatFrom and after the execution of the Merger Agreement until the earlier to occur of the termination of the Merger Agreement and the Effective Time, except as expressly contemplated by this AgreementFusion-io and its subsidiaries are required to immediately cease any and all existing activities, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly discussions or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) negotiations with any inquiries regarding or the making or submission of persons conducted with respect to any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal, as defined below. Fusion-io and its subsidiaries shall not, and shall not authorize or permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisors or representatives retained any of them to, directly or indirectly: • solicit, initiate, knowingly encourage, knowingly assist, knowingly facilitate or knowingly induce the making, submission or announcement of, any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal with respect to Brushyor Acquisition Transaction, (ii) as defined below; • participate or engage in discussions or negotiations with, with any person (other than Parent or disclose Purchaser) regarding any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; • furnish any non-public information relating to Brushy Fusion-io or any of its Subsidiaries subsidiaries, or afford access to the business, properties, assets, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Fusion-io or any of their respective Representatives knows its subsidiaries to, or has reason take any other action intended to believe is contemplating making an Acquisition Proposal with respect to Brushy knowingly encourage, or (iii) accept an Acquisition Proposal with respect to Brushy assist or enter into facilitate, any agreement, including any letter of intent or agreement in principle person (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (xParent or Purchaser) providing for, constituting that is seeking to make or relating has made any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal with respect or Acquisition Transaction; • enter into any letter of intent, memorandum of understanding, definitive agreement or similar document or contract or commitment contemplating or otherwise relating to Brushy any Acquisition Proposal or Acquisition Transaction (y) that would requireother than a nondisclosure agreement meeting certain requirements specified in the Merger Agreement); • approve, endorse or would have the effect of causingrecommend any Acquisition Proposal; • terminate, Brushy to abandonamend, terminate waive or fail to consummate the Merger enforce any rights under any standstill or the other transactions contemplated by this Agreement. Any violation similar agreement between Fusion-io or any of the foregoing restrictions by Brushy’s Subsidiaries or by its subsidiaries and any Representative of Brushy or its Subsidiariesperson (other than Parent), whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwiseprovided, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreementhowever, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party that at any time prior to obtaining the Brushy Required Vote ifOffer Closing, Fusion-io may waive or provide a consent under any standstill to permit a party to make a confidential Acquisition Proposal in compliance with the requirements of the Merger Agreement; or • waive the applicability of all or any portion of Section 203 of the DGCL, the Delaware anti-takeover statute, in respect of any Person (other than Parent and its Affiliates) in relation to any Acquisition Proposal or Acquisition Transaction. However, prior to such votethe Acceptance Time, (x) Brushy receives the Fusion-io Board may: • engage or participate in discussions or negotiations with any person that has made and not withdrawn a bona fide fide, written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after that the date and in violation of this Agreement), (y) the Brushy Fusion-io Board determines concludes in good faith by resolution duly adopted (after consultation with its financial advisors advisor of nationally recognized standing and its outside legal counsel) that such proposal constitutes or is reasonably likely to result in lead to a Superior Proposal (as defined below); and • furnish to such person non-public information relating to Fusion-io and its subsidiaries pursuant to a nondisclosure agreement the terms of which are no less favorable to Fusion-io than those contained in the Nondisclosure Agreement (which shall not include any provisions that would prevent or restrict Fusion-io or its representatives from providing any information to Parent to which Parent is entitled under the third party that made Merger Agreement or a direct or indirect standstill); provided, however, in order to take any action described in the applicable Acquisition Proposal two bullets above with respect to Brushy and such Acquisition Proposal, any other Acquisition Proposal made by the same person or an affiliate of such person, or otherwise in favor of such person or an affiliate of such person, (zi) neither Fusion-io nor any of its subsidiaries can have breached or violated in any material respect its obligations described in this Section 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," (ii) the Brushy Fusion-io Board determines must have determined in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware law, (iii) Fusion-io must give Parent prior written notice of the Acquisition Proposal, and of Fusion-io's intention to take such actions and (iv) contemporaneously with furnishing any non-public information to such person, Fusion-io shall also furnish such non-public information to Parent to the extent not been previously furnished to Parent. Fusion-io shall promptly advise Parent in writing of any bona fide Acquisition Proposal, any request for information that would reasonably be expected to lead to an Acquisition Proposal has or Acquisition Transaction or any inquiry that would reasonably be expected to lead to any Acquisition Proposal or Acquisition Transaction, including the financial material terms and legal capacity to consummate conditions thereof and the identity of the person or group making any such Acquisition Proposal, provided that Brushy shall not deliver request or inquiry. Fusion-io is obligated to keep Parent promptly and reasonably informed of the status, including all material amendments or proposed amendments, of any Acquisition Proposal, request or inquiry. Fusion-io must also notify Parent at least 24 hours before any meeting of the Fusion-io Board at which the Fusion-io Board is reasonably expected to consider an Acquisition Proposal or Acquisition Transaction, an inquiry relating to a potential Acquisition Proposal or Acquisition Transaction, or a request to provide non-public information to any Person in relation to an Acquisition Proposal or Acquisition Transaction. Neither the Fusion-io Board nor any committee thereof shall (i) fail to make, withhold, withdraw, amend, qualify or modify, or propose to refuse to make, withhold, withdraw, amend, qualify or modify, the Fusion-io Board Recommendation, (ii) approve, endorse or recommend an Acquisition Proposal or Acquisition Transaction, (iii) fail to include the Fusion-io Board Recommendation in the Schedule 14D-9, or (iv) resolve, agree or publicly propose to take any of the foregoing actions (any action described in the preceding clauses (i), (ii), (iii) or this clause (iv) being referred to in this Offer to Purchase as a "Fusion-io Board Recommendation Change"). However, neither a "stop, look and listen" communication by the Fusion-io Board pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act that also includes an express reaffirmation of the Fusion-io Board Recommendation, nor the approval or delivery by Fusion-io of either a Subsequent Determination Notice (as defined below) or an Intervening Event Notice (as defined below), is considered a Fusion-io Board Recommendation Change. The Fusion-io Board may effect a Fusion-io Board Recommendation Change with respect to any Acquisition Proposal at any time prior to the Acceptance Time, if the Fusion-io Board has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal that has not been withdrawn and: • neither Fusion-io nor any of its subsidiaries has breached or violated in any material respect its obligations described in this Section 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," with respect to such third party without entering into an Acceptable Confidentiality Acquisition Proposal or any person making such Acquisition Proposal, • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel and after considering any counter-offer or proposal made by Parent), that, in light of the foregoing Superior Proposal, the failure by the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io stockholders under Delaware Law; • prior to effecting such Fusion-io Board Recommendation Change, the Fusion-io Board has given Parent at least four business days prior written notice that Fusion-io intends to take such action (a "Subsequent Determination Notice,"), which notice attaches such Superior Proposal, identities the person making such Superior Proposal, describes the terms and conditions of such Superior Proposal in reasonable detail, and provides Parent with the opportunity to meet with the Fusion-io Board and its outside legal counsel to discuss a modification of the terms and conditions of the Merger Agreement; and no actions taken • Parent has not made, within four business days after its receipt of Fusion-io's Subsequent Determination Notice, an irrevocable counter-offer or proposal capable of being accepted by Fusion-io that the Fusion-io Board has determined in accordance good faith (after consultation with this sentence a financial advisor of nationally recognized standing and its outside legal counsel) is at least as favorable to Fusion-io's stockholders as such Superior Proposal; Parent and Fusion-io have agreed that every subsequent material revision or material modification to any such Superior Proposal shall require a new Subsequent Determination Notice and a new two business day "matching" period. Fusion-io is obligated to keep confidential any such counter-offers or proposals made by Parent to revise the terms of the Merger Agreement, except to the extent required to be disclosed in any SEC Reports or pursuant to applicable law or stock exchange listing requirement. In addition, the Fusion-io Board may effect a Fusion-io Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event (as defined below) if: • an Intervening Event has occurred; • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, the failure by the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a violation breach of clause its fiduciary duties to Fusion-io's stockholders under Delaware Law; • prior to effecting such Fusion-io Board Recommendation Change, the Fusion-io Board has given Parent at least three business days prior written notice thereof (ian "Intervening Event Notice") specifying the material facts underlying the Fusion-io Board's determination that an Intervening Event has occurred and the rationale and basis for such Fusion-io Board Recommendation Change and giving Parent the opportunity to meet with Fusion-io's outside legal counsel with the purpose and intent of enabling Parent and Fusion-io to discuss in good faith a modification of the terms and conditions of the Merger Agreement so as to obviate the need to effect a Fusion-io Board Recommendation Change on the basis of such Intervening Event; and • following the expiration of such three Business Day period, the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) and after giving consideration to any offer or proposal from Parent, that, in light of such Intervening Event, the failure by the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware law. For purposes of this Section 5.3(a).Offer to Purchase:

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy the Company shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, to (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Brushy the Company or any of its Subsidiaries or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, to any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or intent, memorandum of understanding, agreement in principle principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of permitted pursuant to this Section 5.3(a)), (x5.3) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (yB) that would requirerequiring, intended to cause, or would have which could reasonably be expected to cause the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement (each an "Acquisition Agreement"). Any violation of the foregoing restrictions by Brushy’s any of the Company's Subsidiaries or by any Representative representatives of Brushy the Company or any of its Subsidiaries, whether or not such Representative representative is so authorized and whether or not such Representative representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) or (iii) of this Section 5.3(a) with respect to a third party if at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (xw) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not during such time period initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreementofficers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives), and (yx) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is could reasonably likely be expected to result in lead to, a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; Agreement and no actions taken (y) the Company has previously disclosed or concurrently discloses or makes available the same information, if any, to Parent as it makes available to such third party and provides to Parent a copy of the Acceptable Confidentiality Agreement that the Company entered into with such third party. Nothing contained in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company's stockholders a position with respect to an Acquisition Proposal pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.

Acquisition Proposals. (a) Brushy agrees thatFrom the date hereof until the termination hereof, except as expressly contemplated by this Agreement, neither it nor its the Company and the Company Subsidiaries shallwill not, and Brushy shall, and shall cause its Subsidiaries to, will cause their respective officers, directors, employees or other agents (including, without limitation, investment bankers, attorneys, attorneys or accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, directly or indirectly, (i) directly or indirectly take any action to solicit, initiate, solicit encourage, enter into any agreement or knowingly encourage otherwise facilitate any offer or facilitate (including by way proposal for, or any indication of furnishing non-public information) any inquiries regarding interest in, a merger or other business combination involving Company or the making or submission acquisition of any proposal that constitutesequity interest in, or may reasonably be expected a substantial portion of the assets of Company, other than the transactions contemplated by the Transaction Documents and other than the sale of the hospital in Kirkland, Washington and the sale of real estate and buildings relating to lead tohospitals formerly operated by Company or a Company Subsidiary (an "Acquisition Proposal"), an Acquisition Proposal with respect to Brushy, or (ii) participate or engage in or continue discussions or negotiations with, or disclose any non-public nonpublic information relating to Brushy Company or its Subsidiaries the Company Subsidiaries, respectively, or afford access to the their respective properties, books or records of Brushy or its Subsidiaries to, any Person person that may be considering making, or has made made, an Acquisition Proposal with respect Proposal, or otherwise facilitate any effort or attempt to Brushy make or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making implement an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreementProposal. Notwithstanding the foregoing, including any letter of intent or agreement nothing contained in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), 7.2 shall prohibit Company and its Board of Directors from (xi) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized taking and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be disclosing a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) position with respect to a tender offer by a third party at pursuant to Rules 14d-9 and 14e-2(a) promulgated by the SEC under the Exchange Act, or (ii) furnishing information to, or entering into negotiations with, any time prior person or entity that makes an unsolicited bona fide proposal to obtaining acquire Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the Brushy Required Vote assets, business combination or other similar transaction, if, prior and only to such votethe extent that, (xi) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any Board of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board Directors determines in good faith by resolution duly adopted (after consultation upon advice of counsel that such action is required for the Board of Directors to comply with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely fiduciary duties to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy stockholders imposed by law, and (zii) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making prior to furnishing such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposalinformation to, provided that Brushy shall not deliver any information to such third party without or entering into an Acceptable Confidentiality Agreement; discussions or negotiations with, such person or entity, Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and no actions taken in accordance with this sentence shall constitute a violation Company keeps Parent informed of clause (i) the status and principal financial terms of this Section 5.3(a)any such negotiations or discussions.

Acquisition Proposals. (a) Brushy agrees thatDuring the Interim Period, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries not to, and shall instruct and use reasonable best efforts to cause its and their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) Representatives not to, (ia) directly or indirectly initiate, solicit solicit, enter into or knowingly encourage continue discussions, negotiations or facilitate (including by way of furnishing transactions with, or respond to any inquiries or proposals by, any Person with respect to, or provide any non-public information) information or data concerning the Company or any inquiries regarding or of the making or submission of Company’s Subsidiaries to any proposal that constitutes, or may reasonably be expected to lead Person relating to, an Acquisition Proposal with respect (other than to Brushy, (iiinform such Person of the Company’s obligations pursuant to this Section 7.5) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford to any Person access to the business, properties, books assets, information or records personnel of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries the Company or any of their respective Representatives knows or has reason to believe is contemplating making the Company’s Subsidiaries in connection with an Acquisition Proposal with respect to Brushy or Proposal, (iiib) accept an Acquisition Proposal with respect to Brushy or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent intent, memorandum of understanding or agreement in principle (principle, or any other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or agreement relating to an Acquisition Proposal, (c) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state for purposes of facilitating an Acquisition Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or (e) resolve or agree to do any of the foregoing. The Company shall promptly (and in any event within two (2) Business Days after receipt thereof) notify Acquiror in writing of the receipt of any inquiry, proposal, offer or request for information received after the date of this Agreement that constitutes an Acquisition Proposal and keep Acquiror reasonably informed of any material developments with respect to Brushy any such inquiry, proposal, offer, request for information or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or including any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(amaterial changes thereto).

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause not authorize or permit any of its Subsidiaries or any of its Subsidiaries’ officers, directors or Table of Contents employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly solicit, initiate or indirectly initiateencourage, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) take any inquiries regarding other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any information or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to data regarding the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Company or any of their respective Representatives knows its Subsidiaries to any person in connection with or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect to Brushy any person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (yv) that would requireenter into or consummate any agreement, arrangement or would have understanding contemplating any Acquisition Proposal or requiring the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in the preceding sentence by Brushy’s any officer, director or employee of the Company or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifforegoing, prior to such votethe adoption and approval of this Agreement by the Company’s stockholders at a meeting of the stockholders of the Company, (xthis Section 5.1(a) Brushy receives a bona fide written shall not prohibit the Company from furnishing nonpublic information regarding the Company and its Subsidiaries to, or entering into discussions with, any person in response to an Acquisition Proposal with respect that is submitted to Brushy from the Company by such third party person (and such not withdrawn) if (1) the Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely expected to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and Proposal, (z2) the Brushy Company has not breached any of the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith by resolution duly adopted (faith, after consultation with and based upon the advice of its financial advisors and outside legal counsel, that such action is required in order for the Board of Directors to comply with its fiduciary obligations to the Company’s stockholders under applicable law, and (4) that at least two (2) Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such person, the third party making Company gives Purchaser written notice of the identity of such Acquisition Proposal has person and of the financial Company’s intention to furnish nonpublic information to, or enter into discussions with, such person and legal capacity to consummate the Company receives from such Acquisition Proposal, provided that Brushy shall not deliver any information person an executed confidentiality agreement on terms no more favorable to such third party without entering into an Acceptable Confidentiality Agreement; person than the confidentiality agreement between Purchaser and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)the Company.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries No Company Entity shall, and Brushy shall, and nor shall cause it authorize or permit any of its Subsidiaries Affiliates or Representatives to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly solicit, initiate, solicit or knowingly encourage encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal, (including by way of furnishing non-public informationii) participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any information with respect to, or take any other action to facilitate any inquiries regarding or the making or submission of any proposal that constitutes, constitutes (or may reasonably be expected to lead to, ) an Acquisition Proposal with respect to BrushyProposal, (iiiii) participate subject to Section 8.1(c), approve, endorse or engage in recommend any Acquisition Proposal, or (iv) enter into any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, prior to the Company Stockholder Approval, this Section 8.2(a) shall not prohibit Company from furnishing nonpublic information regarding any Company Entity to, or entering into a confidentiality agreement or discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect or Group in response to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide unsolicited written Acquisition Proposal with respect to Brushy from submitted by such third party Person or Group (and such Acquisition Proposal was not initiatedwithdrawn), solicited, knowingly encouraged but only if (A) no Company Entity or facilitated by Brushy Representative or its Subsidiaries or Affiliate thereof shall have violated any of their respective Representatives after the date and restrictions set forth in violation this Section 8.2; (B) Company’s Board of this Agreement), (y) the Brushy Board Directors determines in good faith by resolution duly adopted (after consultation with its financial advisors based upon the advice of the Company Financial Advisor and the Company’s outside legal counsel) that such proposal constitutes Acquisition Proposal is, or is reasonably likely to result in in, a Superior Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties to Company’s stockholders under applicable Laws; (C) at least three (3) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Company gives Parent written notice of the identity of such Person or Group and of Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group; (D) Company receives from such Person or Group an executed confidentiality agreement containing customary limitations on the third party that made use and disclosure of all nonpublic information furnished to such Person or Group by or on behalf of Company and in any event is no less favorable to the applicable Acquisition Proposal with respect to Brushy Company than the Confidentiality Agreement, dated September 1, 2006, between Company and Parent (the “Confidentiality Agreement”); and (zE) at or prior to the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making time of furnishing such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any nonpublic information to such third party without entering into an Acceptable Confidentiality Person or Group, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by Company to Parent). In addition to the foregoing, Company shall provide Parent with at least two (2) business days prior written notice of any meeting of Company’s Board of Directors at which meeting the Board of Directors is reasonably expected to consider a Superior Proposal or resolve to recommend a Superior Proposal to its stockholders and together with such notice a copy of the most recently proposed documentation relating to such Superior Proposal; provided, further, that Company hereby agrees promptly to provide to Parent any revised documentation and any related Acquisition Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. The Company and its Subsidiaries shall not, and shall use commercially reasonable efforts to cause their respective directors, officers, employees, agents and authorized representatives not to, directly or indirectly, (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly initiate, solicit or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding with respect to, or the making of, any Acquisition Proposal or submission of any offer or proposal that constitutes, or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (iib) engage, continue or otherwise participate in any negotiations or engage in discussions or negotiations withconcerning, or disclose any non-public information relating to Brushy or its Subsidiaries or afford provide access to the its properties, books and records or records of Brushy any confidential information or its Subsidiaries data to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect or any offer or proposal that could reasonably be expected to Brushy lead to an Acquisition Proposal, (c) approve, endorse, recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (yd) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal, and the Company shall not resolve or agree to do any of the foregoing. The Company shall immediately cease any solicitations, discussions or negotiations or other activities with any Person (other than the Parties) in connection with an Acquisition Proposal. The Company also agrees that it will promptly request each Person (other than the Parties) that would require, has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or would have the effect of causing, Brushy destroy all confidential information furnished to abandon, terminate such Person by or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries it or any of their respective Representatives after its subsidiaries prior to the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries toSubsidiaries, cause their respective and its and its Subsidiaries’ officers, directors, directors and employees and any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant or other representatives representative retained by the Company or any of its Subsidiaries (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly solicit, initiate, solicit induce or knowingly encourage encourage, or facilitate (including by way of furnishing non-public information) knowingly take any inquiries regarding other action to facilitate, any inquiries, offers, discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or data regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or data to any Person that Brushy, its Subsidiaries in connection with or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect any Person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any Person from, waive any provisions of, or fail to Brushy use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (yvi) that would requireenter into or consummate any agreement, agreement in principle, letter of intent, arrangement or would have understanding contemplating any Acquisition Proposal or requiring the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by Brushy’s Subsidiaries or set forth in the preceding sentence by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, the Company shall be deemed to be a breach of this Section 5.1 by the Company. Notwithstanding the foregoing, before the adoption and approval of this Agreement by Brushy. Notwithstanding anything the holders of Company Common Stock and Company Class A Common Stock at the Company Shareholder Meeting, this Section 5.1(a) shall not prohibit the Company from furnishing non- public information regarding the Company and its Subsidiaries to, or entering into discussions with, any Person in response to an Acquisition Proposal that is submitted to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to Company by such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party Person (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), withdrawn) if (y1) the Brushy Company’s Board of Directors determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and the Company’s outside legal counsel) that such proposal counsel and financial advisors, the Acquisition Proposal constitutes or is reasonably likely expected to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and Proposal, (z2) the Brushy Company has not breached any of the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and outside legal counsel) , that the third party making failure to take such Acquisition Proposal has action would reasonably be expected to violate the financial directors’ fiduciary obligations to the Company’s shareholders under applicable law, and legal capacity (4) before furnishing any non-public information to, or entering into discussions with, such Person, the Company gives Purchaser written notice of the identity of such Person and of the Company’s intention to consummate furnish non-public information to, or enter into discussions with, such Acquisition Proposal, provided that Brushy shall not deliver any information Person and the Company receives from such Person an executed confidentiality agreement on terms no more favorable to such third party without entering into an Acceptable Person than the Mutual Confidentiality and Non-Disclosure Agreement, dated as of August 9, 2022, between Purchaser and the Company (the “Confidentiality Agreement; ”) is to Purchaser and no actions taken the Company also provides Purchaser, prior to or substantially concurrently with the time such information is provided or made available to such Person, any non-public information furnished to such other Person that was not previously furnished to Purchaser. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any binding acquisition agreement, merger agreement, or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in accordance with this sentence shall constitute a violation of clause (iSection 5.1(a)) of this Section 5.3(a)relating to any Acquisition Proposal.

Acquisition Proposals. (aa)The Company agrees that (i) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor and its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directorsdirectors and employees shall not, investment bankers(ii) its subsidiaries and its subsidiaries' officers, attorneysdirectors and employees shall not and (iii) it shall use its best efforts to ensure that its and its subsidiaries' accountants, accountantsconsultants, financial advisors, agents attorneys, employees and other agents, advisors and representatives (collectively, “"Representatives”") not toshall not, (iA) directly or indirectly indirectly, initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutesor offer with respect to a tender offer or exchange offer, proposal for a merger, consolidation or other business combination involving the Company and its subsidiaries or any proposal or offer to acquire in any manner an equity interest representing a 20% or greater economic or voting interest in the Company, or may reasonably be expected the assets, securities or other ownership interests of or in the Company or any of its subsidiaries representing 20% or more of the consolidated assets of the Company and its subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"), (B) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to any person relating to, an Acquisition Proposal with respect to BrushyProposal, (iiC) participate or engage in discussions or negotiations with, or disclose take any non-public information relating action to Brushy or its Subsidiaries or afford access to render the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating Company Rights inapplicable to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation thereby, exempt or exclude any person from the applicability of the foregoing restrictions by Brushy’s Subsidiaries Company Rights in connection with any Acquisition Proposal or by any Representative transactions contemplated thereby (provided that nothing herein shall prevent the Company's Board of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to Directors from taking the contrary action set forth in this Agreement, Brushy and the Brushy Board may take any actions described first parenthetical in clause (ii) of Section 3(a) of the Rights Plan) or, other than as contemplated by this Agreement in connection with the Merger, allow the Company Rights to expire prior to their expiration date, or take any action to exempt any person from the restrictions on "business combinations" contained in Section 5.3(a203 of the DGCL or otherwise cause such restrictions not to apply or (D) waive, terminate, modify or fail to enforce any provision of any contractual "standstill" or similar obligation of any person other than Parent or its affiliates unless the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel, that such waiver, termination, modification or failure to enforce is required in order for the Board of Directors to comply with its fiduciary duties under applicable Law. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to an Acquisition Proposal (provided that neither the Company nor its Board of Directors may recommend any Acquisition Proposal unless permitted by Section 6.5(b) and the Company may not fail to make or withdraw, modify or change in a manner adverse to Parent, all or any portion of its recommendation of this Agreement or the Merger unless permitted by Section 6.1(a)), (ii) prior to the adoption of this Agreement by the Company's stockholders in accordance with this Agreement, providing access to its properties, books and records and providing information or data (provided that such access, information or data also is given to Parent to the extent not previously given to Parent) in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal not in violation of the immediately preceding sentence if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement) or (iii) prior to the adoption of this Agreement by the Company's stockholders in accordance with this Agreement, engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal not in violation of the immediately preceding sentence; if and only to the extent that in connection with the foregoing clauses (ii) and (iii), the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel and financial advisors that, such action is required in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable Law and that such Acquisition Proposal will result in, or would reasonably be expected to result in, a Superior Proposal. A "Superior Proposal" means an Acquisition Proposal for more than 50% of the equity interest in, or more than 50% of the consolidated assets of, the Company and its subsidiaries that, if accepted, is reasonably capable of being consummated, taking into account legal, financial, regulatory, timing and similar aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement. The Company and its subsidiaries will and will cause their respective Representatives to immediately cease and cause to be terminated any existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal. The Company shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal after the date hereof, which notice shall include the identity of the person making such Acquisition Proposal and set forth in reasonable detail its material terms and conditions (including without limitation information relating to the financing thereof), and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal and provide a third party copy of all written materials provided to or by the Company in connection with such Acquisition Proposal. Except as otherwise permitted by this Agreement, the Company and its subsidiaries shall not enter into any Contract that is inconsistent with their respective obligations under this Section 6.5. (b) Notwithstanding anything in this Section 6.5 to the contrary, if, at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation adoption of this Agreement by the Company's stockholders in accordance with this Agreement), (y) the Brushy Company's Board of Directors determines in good faith by resolution duly adopted (faith, after consultation with its financial advisors and outside legal counsel, in response to a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of Section 6.5(a) in any material respect, that such proposal constitutes is a Superior Proposal, (i) the Company may terminate this Agreement, (ii) its Board of Directors may approve or is reasonably likely recommend such Superior Proposal to result in its stockholders, and/or (iii) immediately prior to or concurrently with the termination of this Agreement, enter into any agreement, understanding, letter of intent or arrangement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement or approve or recommend such Superior Proposal pursuant to this sentence, and any purported termination or approval pursuant to this sentence shall be void and of no force or effect, unless the Company prior to or concurrently with such action pursuant to this Section 6.5(b) pays to Parent the fee payable pursuant to Section 8.2(c); and provided, further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to this Section 6.5(b) and its Board of Directors may not approve or recommend any Superior Proposal unless (A) the Company has provided a written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company has received a Superior Proposal from and including all information required by the third party penultimate sentence of Section 6.5(a) (it being understood that made neither the delivery of a Notice of a Superior Proposal nor any subsequent public announcement thereof in itself shall entitle Parent to terminate this Agreement pursuant to Section 8.1(e)), and (B) Parent does not, within three business days following its receipt of the Notice of Superior Proposal, make an offer that, as determined by the Board of Directors of the Company in good faith after consultation with its outside legal counsel and financial advisors, results in the applicable Acquisition Proposal with respect to Brushy and no longer being a Superior Proposal (z) provided that, during such three business day period, the Brushy Board determines Company shall negotiate in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that Parent, to the third party making extent Parent wishes to negotiate, to enable Parent to make such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(aoffer).. SECTION 6.6

Acquisition Proposals. (a) Brushy agrees thatIn the case of the Company, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shallshall not, and Brushy shall, and it shall cause its Subsidiaries tothe Company Subsidiaries, cause the directors, officers, or employees of the Company or any of Company Subsidiaries, or any of their respective officersattorneys, directors, investment bankers, attorneys, accountants, financial advisors, agents and or other representatives advisors (collectively, the “Company Representatives”) not to, solicit or encourage inquires or proposals with respect to, or furnish any nonpublic information relating to or participate in any negotiations or discussions concerning, any acquisition or purchase of all or a substantial portion of the assets of the Company or any of the Company Subsidiaries or any merger or other business combination with the Company or any of the Company Subsidiaries other than as contemplated by the Plan; and the Company shall notify Purchaser immediately if and the terms of any such inquiries or proposals are received by, or any such negotiations or discussions are sought to be initiated with, the Company or any of the Company Subsidiaries. All pending negotiations or discussions by Company Representatives have been terminated and the Company’s confidential information has been destroyed and returned as provided in the applicable confidentiality agreement. Nothing in the Plan will prevent the Company or the Company Board from: (i) directly providing information in response to a request therefore by a person who has made an unsolicited bona fide written proposal for an acquisition or indirectly initiate, solicit purchase of the type described in the preceding sentence; or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate engaging in any negotiations or engage in discussions or negotiations withwith any person who has made such an unsolicited bona fide written proposal, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access if and only to the propertiesextent that, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect in each such case referred to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (i) or (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counseladvisors) that such the proposal constitutes or is could reasonably likely to result in a Superior Proposal transaction more favorable to the holders of shares, as a group in their capacity as shareholders of Company Common Stock, from a financial point of view than the third party that made Merger or if counsel to the applicable Acquisition Proposal with respect to Brushy and (z) Company advises the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) of Directors that the third party making failure to furnish information, negotiate or enter into appropriate agreements with such Acquisition Proposal has person could reasonably be expected to subject the financial and legal capacity Company’s directors to consummate such Acquisition Proposalliability for breach of their fiduciary duties or for failure to conform to the requirements of the securities laws, provided that Brushy shall not deliver any information in each case subject to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken the provisions of Article VII. If negotiations or discussions are initiated in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)the preceding sentence, the Company agrees that it will notify Purchaser immediately.

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause not authorize or permit any of its Subsidiaries or any of its Subsidiaries’ officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly or indirectly solicit, initiate, solicit induce or knowingly encourage encourage, or facilitate (including by way of furnishing non-public information) take any inquiries regarding other action to facilitate, any inquiries, offers discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or data regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or data to any Person that Brushy, its Subsidiaries in connection with or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect any person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any person from, waive any provisions of, or fail to Brushy use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (yvi) that would requireenter into or consummate any agreement, agreement in principle, letter of intent, arrangement or would have understanding contemplating any Acquisition Proposal or requiring the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in the preceding sentence by Brushy’s any officer, director or employee of the Company or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifforegoing, prior to such votethe adoption and approval of this Agreement by the Company’s stockholders at the Company Stockholder Meeting, (xthis Section 5.1(a) Brushy receives a bona fide written shall not prohibit the Company from furnishing non-public information regarding the Company and its Subsidiaries to, or entering into discussions with, any person in response to an Acquisition Proposal with respect that is submitted to Brushy from the Company by such third party Person (and such not withdrawn) if (1) the Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely expected to result in a Superior Proposal Proposal, (2) the Company has not breached any of the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to violate the directors’ fiduciary obligations to the Company’s stockholders under applicable law, and (4) prior to furnishing any non-public information to, or entering into discussions with, such Person, the Company gives Purchaser written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions with, such Person and the Company receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the third party confidentiality agreement between Purchaser and the Company is to Purchaser. (b) The Company will notify Purchaser orally within twenty-four (24) hours and in writing (within two (2) calendar days) of receipt of any Acquisition Proposal, any request for non-public information that made the applicable could reasonably be expected to lead to an Acquisition Proposal Proposal, or any inquiry with respect to Brushy and (z) or that could reasonably be expected to lead to an Acquisition Proposal, including, in each case, the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that identity of the third party Person making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy the request or inquiry and the terms and conditions thereof, and shall not deliver provide to Purchaser any information written materials received by the Company or any of its Subsidiaries in connection therewith. The Company will keep Purchaser informed of any developments with respect to any such third party without entering into an Acceptable Confidentiality Agreement; Acquisition Proposal, request or inquiry promptly orally (within one (1) calendar day) and no actions taken in accordance with this sentence shall constitute a violation of clause writing (iwithin two (2) of this Section 5.3(a)calendar days) upon the occurrence thereof.

Acquisition Proposals. (a) Brushy Parent agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries the Company shall, and Brushy shall, and Parent shall cause its Subsidiaries to, cause their respective and the Company’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly indirectly, initiate, solicit or knowingly encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto or its Representatives) any information relating to Brushy the Company or its Subsidiaries any of the Company’s Subsidiaries, or afford access to the properties, books or records of Brushy the Company or its any of the Company’s Subsidiaries to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal with respect to Brushy or to that the Company, any Person that Brushy, its of the Company’s Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, arrangement or understanding, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in under circumstances contemplated in the final sentence of this Section 5.3(a5.2(b)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would could have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the Merger Acquisition or the any other transactions transaction contemplated by this Agreement. Other than with respect to PESI, Parent shall not (A) waive, modify, terminate, or fail to enforce any “standstill” obligation of any Person, and (B) render the restrictions, if any, under the Nevada Corporate Code relating to business combinations inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.2(a) by Brushy’s any of Parent, the Company, or any of their Subsidiaries or by any Representative of Brushy Parent, the Company or its any of their Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy Parent, the Company or its any of their Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by BrushyParent. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).39

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by this AgreementSection 6.12, neither the Company agrees that it nor will not, and will cause each of its Subsidiaries shall, and Brushy shall, its and shall cause its Subsidiaries to, cause their respective officers, directorsdirectors and employees, and will use its reasonable best efforts to cause its and their respective agents, advisors, financing sources, investment bankers, attorneys, accountants, financial advisors, agents attorneys and other representatives (collectivelycollectively with officers, directors and employees, “Representatives”) ), not to, directly or indirectly, (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding or proposals regarding, or the making or submission of any proposal or offer that constitutes, or may could reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal, (ii) engage or participate or engage in any discussions or negotiations with any person concerning any Acquisition Proposal, (iii) disclose or provide any confidential or nonpublic information or data to, or otherwise cooperate in any way with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford person in connection with any Acquisition Proposal (including by affording access to the personnel, properties, books books, records or records assets of Brushy the Company or its Subsidiaries toSubsidiaries) or (iv) unless this Agreement has been terminated in accordance with its terms, enter into any Person term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Acquisition Proposal (provided, however, that the foregoing shall not prevent the Company or its Representatives from contacting any person who has made an Acquisition Proposal with respect or inquiry or proposal relating thereto solely for the purpose of seeking clarification of the terms and conditions thereof). Notwithstanding the foregoing, prior to Brushy or to any Person that Brushythe receipt of the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries or any of their respective and its and its Subsidiaries’ Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))to, (x) providing for, constituting furnish or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed cause to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged furnished confidential or facilitated by Brushy nonpublic information or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement)data to, (y) participate in negotiations or discussions with and (z) afford access to its and their personnel, properties, books, records and assets to the Brushy person making the Acquisition Proposal (and such person’s Representatives) if and only if its Board determines of Directors concludes in good faith by resolution duly adopted (after consultation with its outside counsel, and with respect to financial advisors and outside legal counselmatters, its financial advisors) that failure to take such proposal constitutes or is reasonably actions would be more likely than not to result in a Superior Proposal from violation of its fiduciary duties under applicable law; provided, further, that prior to providing any confidential or nonpublic information permitted to be provided pursuant to the foregoing proviso affording such access or participating in such negotiations or discussions, the Company shall have given Parent at least twenty-four (24) hours’ prior written notice and shall have entered into a confidentiality agreement with such third party that made on terms no less favorable to it than the applicable Acquisition Proposal Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with the Company. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Parent with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such any Acquisition Proposal has the financial and legal capacity will request pursuant to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).applicable

Acquisition Proposals. (a) Brushy agrees thatUntil this Agreement has been terminated in accordance with Section 7.1 (and the payments, except as expressly contemplated by this Agreementif any, neither it nor its Subsidiaries shallrequired to be made in connection with such termination pursuant to Section 7.2(b) or 7.2(c) have been made), Company shall not, and Brushy shallshall not authorize or permit any of its Affiliates to, and shall cause its Subsidiaries to, cause their respective and its Affiliates’ officers, directors, employees, consultants, representatives and other agents, including investment bankers, attorneys, accountants, financial advisors, agents accountants and other representatives advisors (collectively, the “Representatives”) ), not to, directly or indirectly, (i) directly or indirectly initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public or disclosing information) ), solicit, initiate, make or facilitate the making of, or take any other action to facilitate any inquiries regarding or the making or submission of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Acquisition Proposal (including, without limitation, taking any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including, without limitation, Sections 180.1130 through 180.1150, inclusive, of the WBCL) inapplicable to any transactions contemplated by an Acquisition Proposal with respect to BrushyProposal), (ii) participate or engage in any way in discussions or negotiations with, or furnish or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that (other than Purchaser or any of its Representatives or Company’s Representatives) in connection with any Acquisition Proposal, (iii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which Company is a party or under which Company has made an Acquisition Proposal any rights with respect to Brushy the divestiture of the voting securities or to any Person that Brushy, its Subsidiaries material portion of the assets of Company (except for any such agreement with Purchaser or any of their respective Representatives knows its Subsidiaries), (iv) effect a Change in Company Recommendation other than following a material breach by Purchaser of any of its representations, warranties or has reason to believe covenants contained in this Agreement, (v) approve or recommend, or publicly announce it is contemplating making an considering approving or recommending, any Acquisition Proposal with respect to Brushy or (iiivi) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent intent, agreement-in-principle, acquisition agreement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting instrument contemplating or otherwise relating to an any Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy requiring Company to abandon, terminate or fail to consummate any of the Merger transactions contemplated hereby, including the Merger. Any Change in Company Recommendation or proposed approval or recommendation of any Superior Proposal or the other transactions contemplated entry by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by Company into any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) agreement with respect to a third party any Superior Proposal shall not change the approval of the Board of Directors of Company for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Merger. Notwithstanding the foregoing, at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) time that the third party making such Acquisition Proposal has Company Requisite Shareholder Vote is obtained, Company and the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).Representatives may:

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by Upon execution of this Agreement, neither it nor the Company and its Subsidiaries shall, and Brushy shall, and shall cause its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other representatives advisors will immediately cease any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal (collectivelyas hereinafter defined). The Company may, “Representatives”) not to, (i) directly or indirectly initiateindirectly, solicit furnish information and access, in each case only in response to requests that were not solicited by the Company (or knowingly encourage any officer, director, employee, agent or facilitate advisor on its behalf) after the date of this Agreement, to any corporation, partnership, person or other entity or group (including by way each, a "Potential Acquiror") pursuant to confidentiality agreements, and may participate in discussions and negotiate with a Potential Acquiror concerning any merger, sale of furnishing non-public information) assets, sale of shares of capital stock or similar transaction involving the Company, if such Potential Acquiror has submitted a written proposal to the Board of Directors relating to any inquiries regarding such transaction, and the Board of Directors determines in good faith after consultation with independent legal counsel that the failure to provide such information or access or to engage in such discussions or negotiations would be inconsistent with their fiduciary duties to the making Company's shareholders under applicable law. The Company shall notify Acquiror immediately if any such request or submission of any proposal that constitutesproposal, or may any inquiry or contact with any Person with respect thereto, is made and shall keep Acquiror apprised of all developments that could reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated culminate in the final sentence Board withdrawing, modifying or amending its recommendation of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or and the other transactions contemplated by this Agreement. Any violation For purposes of this section 5.03, the term "Acquisition Proposal" means any proposal or offer for a merger, asset acquisition or other business combination (other than the Merger contemplated by this Agreement) involving the Company and any Potential Acquiror, or any proposal or offer to acquire a significant equity interest in, or a significant portion of the foregoing restrictions assets of, the Company by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)Potential Acquiror.

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause not authorize or permit any of its Subsidiaries or any of its Subsidiaries’ officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not todirectly or indirectly, (i) directly solicit, initiate or indirectly initiateencourage, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) take any inquiries regarding other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any information or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford access to data regarding the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries Company or any of their respective Representatives knows its Subsidiaries to any person in connection with or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect to Brushy any person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (yv) that would requireenter into or consummate any agreement, arrangement or would have the effect of causing, Brushy understanding contemplating any Acquisition Transaction or requiring it to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in the preceding sentence by Brushy’s any officer, director or employee of the Company or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote ifforegoing, prior to such votethe adoption and approval of this Agreement by the Company’s stockholders at a meeting of the stockholders of the Company, (xthis Section 5.1(a) Brushy receives a bona fide written shall not prohibit the Company from furnishing nonpublic information regarding the Company and its Subsidiaries to, or entering into discussions with, any person in response to an Acquisition Proposal with respect that is submitted to Brushy from the Company by such third party person (and such not withdrawn) if (1) the Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely expected to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and Proposal, (z2) the Brushy Company has not violated any of the restrictions set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith by resolution duly adopted (faith, after consultation with and based upon the advice of its financial advisors and outside legal counsel, that such action is required in order for the Board of Directors to comply with its fiduciary obligations to the Company’s stockholders under applicable law, and (4) that at least two (2) Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such person, the third party making Company gives Purchaser written notice of the identity of such Acquisition Proposal has person and of the financial Company’s intention to furnish nonpublic information to, or enter into discussions with, such person and legal capacity to consummate the Company receives from such Acquisition Proposal, provided that Brushy shall not deliver any information person an executed confidentiality agreement on terms no more favorable to such third party without entering into an Acceptable Confidentiality Agreement; person than the confidentiality agreement between Purchaser and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a)the Company.

Acquisition Proposals. (a) Brushy agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallthe Company shall not, and shall cause its Subsidiaries toSubsidiaries, cause their respective and its and its Subsidiaries’ officers, directors, directors or employees or any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant or other representatives representative retained by the Company or any of its Subsidiaries (collectively, the “Representatives”) not to, directly or indirectly, (i) directly or indirectly solicit, initiate, solicit induce or knowingly encourage encourage, or facilitate (including by way of furnishing non-public information) knowingly take any inquiries regarding other action to facilitate, any inquiries, offers discussions or the making or submission of any proposal that constitutes, constitutes or may could reasonably be expected to lead to, to an Acquisition Proposal with respect to BrushyProposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information relating to Brushy or data regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or data to any Person that Brushy, its Subsidiaries in connection with or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with respect any Person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any Person from, waive any provisions of, or fail to Brushy use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (yvi) that would requireenter into or consummate any agreement, agreement in principle, letter of intent, arrangement or would have understanding contemplating any Acquisition Proposal or requiring the effect of causing, Brushy Company to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in the preceding sentence by Brushy’s any officer, director or employee of the Company or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.1 by the Company. Notwithstanding the foregoing, before the adoption and approval of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy Company’s shareholders of Company Common Stock and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party Company Preferred Stock at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).the

Acquisition Proposals. (a) Brushy The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and Brushy shall, and the Company shall cause its Subsidiaries to, cause their respective and its Subsidiaries’ officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to, (i) directly or indirectly indirectly, initiate, solicit or knowingly encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal with respect to BrushyProposal, (ii) directly or indirectly, participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto) any information relating to Brushy the Company or any of its Subsidiaries Subsidiaries, or afford access to the properties, books or records of Brushy the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal with respect to Brushy or to that the Company, any Person that Brushy, of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, arrangement or understanding, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would could have the effect of causing, Brushy the Company to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement. Other than with respect to Parent and Merger Sub, the Company shall not (i) waive, modify, terminate, or fail to enforce any “standstill” obligation of any Person, (ii) modify, waive, amend or terminate the Company Rights Agreement, or (iii) render the restrictions on “Business Combinations” (as defined in Section 203 of the DGCL) under Section 203 of the DGCL inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.3(a) by Brushyany of the Company’s Subsidiaries or by any Representative of Brushy the Company or any of its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushythe Company. Notwithstanding anything to the contrary in this Agreement, Brushy the Company and the Brushy Company Board may take any actions described in clause (ii) of the first sentence of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Company Required Vote if, prior to such vote, (xw) Brushy the Company receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy the Company or any of its Subsidiaries or any of their respective Representatives after the date and in violation of this AgreementAgreement and did not otherwise result from a violation of this Agreement or any standstill agreement), (yx) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counselcounsel of nationally recognized reputation) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and Proposal, (zy) the Brushy Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counselcounsel of nationally recognized reputation) that the third party making such Acquisition Proposal has the financial and legal capability and capacity to consummate such Acquisition Proposal, Proposal and (z) the Company Board determines after the receipt of advice from outside legal counsel that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law; provided that Brushy the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; , and no actions taken in accordance with this sentence the Company shall constitute a violation promptly provide or make available to Parent any material non-public information concerning the Company or any of clause (i) of this Section 5.3(a)its Subsidiaries that is provided to any Person making such Acquisition Proposal or such Person’s Representatives that was not previously provided or made available to Parent.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallThe Sellers shall not, and shall cause its their Subsidiaries to, cause and each of their respective directors, officers, directorsemployees, investment bankersagents, attorneysconsultants, accountantsadvisors or other representatives, financial advisors, agents including legal counsel and other representatives accountants (collectively, “Representatives”) not to, (i) directly or indirectly indirectly, (x) solicit, initiate, solicit or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy(as defined below), (iiy) participate or engage in discussions or negotiations with, or disclose any non-non public information or data relating to Brushy the Shares, the Company or its Subsidiaries or afford access any of the Company Contracts to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iiiz) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent agreement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting for or relating to an Acquisition Proposal with respect to Brushy or (y) that would requireenter into any agreement or agreement in principle requiring the Sellers to, or would have which contemplates that the effect of causingSellers shall, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any violation Concurrently with execution of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy the Sellers shall, and the Brushy Board may take shall cause their respective Representatives to, immediately cease any actions described in clause (ii) of this Section 5.3(a) existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect and request the return or destruction of any confidential information concerning the Company and it Subsidiaries that has been provided to Brushy from any such third party Person in connection therewith. The Sellers shall notify the Purchaser (and such Acquisition Proposal was not initiatedprovide all details reasonably requested by the Purchaser) promptly, solicitedbut in any event within seventy-two (72) hours, knowingly encouraged or facilitated by Brushy or its Subsidiaries if the Sellers or any of their respective Representatives after affiliates receives any Acquisition Proposal. For the date and in violation purposes of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such “Acquisition Proposal” shall mean any inquiry, provided that Brushy shall not deliver proposal or offer from any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation Person (other than the Purchaser or any of clause (iits affiliates) concerning any sale, transfer, lease, assignment, pledge, hypothecation or other disposition of this Section 5.3(a)any or all of the Shares or any other capital stock or other equity interests of the Company, including any single or multi-step transaction or series of related transactions.

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor its Subsidiaries shall, and Brushy shallThe Sellers shall not, and shall cause its their Subsidiaries to, cause and each of their respective directors, officers, directorsemployees, investment bankersagents, attorneysconsultants, accountantsadvisors or other representatives, financial advisors, agents including legal counsel and other representatives accountants (collectively, “"Representatives”") not to, (i) directly or indirectly indirectly, (x) solicit, initiate, solicit or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal with respect to Brushy(as defined below), (iiy) participate or engage in discussions or negotiations with, or disclose any non-non public information or data relating to Brushy the Shares, the Company or its Subsidiaries or afford access any of the Company Contracts to the properties, books or records of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any in contemplation of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy Proposal, or (iiiz) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent agreement or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting for or relating to an Acquisition Proposal with respect to Brushy or (y) that would requireenter into any agreement or agreement in principle requiring the Sellers to, or would have which contemplates that the effect of causingSellers shall, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreementhereby. Any violation Concurrently with execution of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy the Sellers shall, and the Brushy Board may take shall cause their respective Representatives to, immediately cease any actions described in clause (ii) of this Section 5.3(a) existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect and request the return or destruction of any confidential information concerning the Company and it Subsidiaries that has been provided to Brushy from any such third party Person in connection therewith. The Sellers shall notify the Purchaser (and such Acquisition Proposal was not initiatedprovide all details reasonably requested by the Purchaser) promptly, solicitedbut in any event within seventy-two (72), knowingly encouraged or facilitated by Brushy or its Subsidiaries if the Sellers or any of their respective Representatives after affiliates receives any Acquisition Proposal. For the date and in violation purposes of this Agreement), (y) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such "Acquisition Proposal" shall mean any inquiry, provided that Brushy shall not deliver proposal or offer from any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation Person (other than the Purchaser or any of clause (iits affiliates) concerning any sale, transfer, lease, assignment, pledge, hypothecation or other disposition of this Section 5.3(a)any or all of the Shares or any other capital stock or other equity interests of the Company, including any single or multi-step transaction or series of related transactions.

Acquisition Proposals. (a) Brushy agrees that, except Except as expressly contemplated permitted by this AgreementSection 6.12, neither the Company agrees that it nor will not, and will cause each of its Subsidiaries shall, and Brushy shall, its and shall cause its Subsidiaries to, cause their respective officers, directorsdirectors and employees, and will use its reasonable best efforts to cause its and their respective agents, advisors, financing sources, investment bankers, attorneys, accountants, financial advisors, agents attorneys and other representatives (collectivelycollectively with officers, directors and employees, “Representatives”) ), not to, directly or indirectly, (i) directly or indirectly initiate, solicit or solicit, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding or proposals regarding, or the making or submission of any proposal or offer that constitutes, or may could reasonably be expected to lead to, an any Acquisition Proposal with respect to BrushyProposal, (ii) engage or participate or engage in any discussions or negotiations with any person concerning any Acquisition Proposal, (iii) disclose or provide any confidential or nonpublic information or data to, or otherwise cooperate in any way with, or disclose any non-public information relating to Brushy or its Subsidiaries or afford person in connection with any Acquisition Proposal (including by affording access to the personnel, properties, books books, records or records assets of Brushy the Company or its Subsidiaries toSubsidiaries) or (iv) unless this Agreement has been terminated in accordance with its terms, enter into any Person term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (whether written or oral, binding or nonbinding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Acquisition Proposal (provided, however, that the foregoing shall not prevent the Company or its Representatives from contacting any person who has made an Acquisition Proposal with respect or inquiry or proposal relating thereto solely for the purpose of seeking clarification of the terms and conditions thereof). Notwithstanding the foregoing, prior to Brushy or to any Person that Brushythe receipt of the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries or any of their respective and its and its Subsidiaries’ Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a))to, (x) providing for, constituting furnish or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed cause to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged furnished confidential or facilitated by Brushy nonpublic information or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement)data to, (y) participate in negotiations or discussions with and (z) afford access to its and their personnel, properties, books, records and assets to the Brushy person making the Acquisition Proposal (and such person’s Representatives) if and only if its Board determines of Directors concludes in good faith by resolution duly adopted (after consultation with its outside counsel, and with respect to financial advisors and outside legal counselmatters, its financial advisors) that failure to take such proposal constitutes or is reasonably actions would be more likely than not to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement; and no actions taken in accordance with this sentence shall constitute a violation of clause (i) of this Section 5.3(a).its fiduciary duties under applicable Law; provided, further, that prior to

Acquisition Proposals. (a) Brushy agrees that, except as expressly contemplated by From and after the date hereof until the termination of this Agreement, neither it Seller nor its Subsidiaries shallSeller S&L, and Brushy shall, and shall cause its Subsidiaries to, cause nor any of their respective officers, directors, investment bankersemployees, attorneys, accountants, financial advisorsrepresentatives, agents and other representatives or affiliates (collectivelyincluding, “Representatives”) not towithout limitation, (i) any investment banker, attorney or accountant retained by Seller or any of its Subsidiaries), will, directly or indirectly indirectly, initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) information or assistance), or facilitate knowingly, any inquiries regarding or the making or submission of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal with respect or agree to Brushyor endorse any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its Subsidiaries to take any such action; provided, however, that nothing contained in this Section 5.01 shall prohibit the Board of Directors of Seller from (iii) participate furnishing information to, or engage in entering into discussions or negotiations withwith any, person or disclose any non-public information relating entity that makes an unsolicited written, bona fide proposal to Brushy acquire Seller pursuant to a merger, consolidation, share exchange, business combination, tender or its Subsidiaries exchange offer or afford access other similar transaction, if, and only to the properties, books or records extent that the Board of Brushy or its Subsidiaries to, any Person that has made an Acquisition Proposal with respect to Brushy or to any Person that Brushy, its Subsidiaries or any Directors of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent or agreement in principle (other than an Acceptable Confidentiality Agreement in circumstances contemplated in the final sentence of this Section 5.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (y) that would require, or would have the effect of causing, Brushy to abandon, terminate or fail to consummate the Merger or the other transactions contemplated by this Agreement. Any violation of the foregoing restrictions by Brushy’s Subsidiaries or by any Representative of Brushy or its Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Brushy or its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Brushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Brushy Board may take any actions described in clause (ii) of this Section 5.3(a) with respect to a third party at any time prior to obtaining the Brushy Required Vote if, prior to such vote, (x) Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by Brushy or its Subsidiaries or any of their respective Representatives after the date and in violation of this Agreement), (y) the Brushy Board determines Seller concludes in good faith by resolution duly adopted (faith, after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or is reasonably likely to result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy counsel and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors taking into account, among other things, all legal, financial, regulatory and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate other aspects of such Acquisition Proposal, provided and the nature of the person making the Acquisition Proposal, that Brushy shall not deliver any such proposal, would, if consummated, result in a transaction that is more favorable to its stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by this Agreement and is reasonably capable of being completed (a "SUPERIOR PROPOSAL") and prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Seller (x) provides reasonable notice to Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such third party without person or entity and (y) receives from such person or entity an executed confidentiality agreement in reasonably customary form; (ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer; or (iii) failing to make or withdrawing or modifying its recommendation, or (iv) entering into an Acceptable Confidentiality agreement with respect to a Superior Proposal. For purposes of this Agreement; and no actions taken in accordance with this sentence , "ACQUISITION PROPOSAL" shall constitute a violation mean any of clause the following (other than the transactions contemplated hereunder) involving Seller or any of its Subsidiaries: (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of this Section 5.3(a25% or more of the assets of Seller or Seller S&L, taken as a whole, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 25% or more of the outstanding shares of capital stock of Seller or the filing of a registration statement under the Securities Act of 1933, as amended (the "SECURITIES ACT"), in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.