Common use of Alternative Proposals Clause in Contracts

Alternative Proposals. Prior to the Effective Time, the Company agrees that it will not, directly or indirectly, through any officer, director, agent or otherwise, (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets or any securities of the Company or any part thereof (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"); provided, however, that nothing contained in this Section 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior to the Effective Time, the Company agrees --------------------- agrees (a) that neither it will notnor any of its subsidiaries shall, nor shall it or any of its subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, accountant or attorney retained by it or any of its subsidiaries) to, initiate, solicit or encourage, directly or indirectly, through any officerinquiries or the making or implementation of any proposal or offer (including, directorwithout limitation, agent any proposal or otherwise, (ioffer to its stockholders) solicit for a merger or initiate, directly other business combination involving the Company or indirectlyfor the acquisition of, or encourage submission the acquisition of inquiriesa controlling equity interest in, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition all or a substantial portion of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect toof, the disposition of the assets or any securities of the Company or any part thereof (any such proposal or offer being hereinafter referred to as an "Alternative Proposal")) or engage in any negotiations -------------------- concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal, other than as contemplated by this Agreement; and (b) that it will notify SmarTalk immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing -------- ------- contained in this Section 5.1 6.4 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the written advice of outside counsel, determines in good faith by a majority vote that such action is required appropriate for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawlaw and such proposal is, in the written advice of Xxxxxxx, Baring & Co., Incorporated, more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser SmarTalk to the effect that it is furnishing information to, or entering into discussions discussion or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser SmarTalk informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 section 6.4 shall (Ax) permit the Company to terminate this Agreement (except as specifically provided in Article 7 10 hereof), (By) permit the Company to enter into any an agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)Proposal), or (Cz) affect any other obligation of the Company under this agreement. From and after the execution of this Agreement, the Company shall immediately advise SmarTalk in writing of the receipt, directly or indirectly, of any inquiries or proposals relating to an Alternative Proposal and furnish to SmarTalk either a copy of any such proposal or a written summary of any such proposal.

Alternative Proposals. Prior to the Effective Time, (a) Neither the Company agrees that it will notnor any of its Subsidiaries shall, and they shall cause their officers, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or its Subsidiaries) not to initiate, solicit, or knowingly encourage, directly or indirectly, through any officer, director, agent inquiries or otherwise, the making or implementation of any Alternative Proposal (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary courseas defined below) or (ii) participate in any discussions or negotiations regardingconcerning, or furnish provide any person with confidential information with respect or data to, afford access to the disposition of the assets properties, books or any securities records of the Company or its Subsidiaries to, or have any part thereof (discussions with, any such proposal or offer being hereinafter referred Person relating to as an "Alternative Proposal"), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that nothing contained in this Section 5.1 shall prohibit the Company or its Board of Directors of the Company from from: (i) furnishing information at any time prior to or entering into obtaining the Company Stockholder Approval (the "Company Applicable Period"), participating in discussions or negotiations with, any person providing confidential information or entity that makes an unsoliciteddata to, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject affording access to the arrangement properties, books or records of financing (other than securities the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in after consultation with its their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) represents a financially superior transaction for such Alternative Proposal was not initiated, solicited or knowingly encouraged by the stockholders Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company as compared to the Merger, if, and only to the extent thathas complied with its obligations under this Section 5.1, (Ay) the Board of Directors of the Company, based upon the advice of after consultation with outside legal counsel, determines in good faith that such action is required for the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors to comply with its fiduciary duties of the Company to stockholders imposed by lawof the Company under applicable Law and (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company's stockholders, (B) prior if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to furnishing disclose such information to, or entering into discussions or negotiations with, such person or entity, would result in a breach of the fiduciary duty of the Board of Directors of the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), stockholders of the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; under applicable Law. Any actions permitted under clauses (i) and (ii) to above, and taken in compliance with the extent applicableforegoing, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than be deemed a confidentiality agreement in customary form)), or (C) affect breach of any other obligation covenant or agreement of the Company under such party contained in this Agreement.

Alternative Proposals. Prior to the Effective Time, (a) Neither the Company agrees that it will notnor any --------------------- of its Subsidiaries shall, and they shall cause their officers, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or its Subsidiaries) not to initiate, solicit, or knowingly encourage, directly or indirectly, through any officer, director, agent inquiries or otherwise, the making or implementation of any Alternative Proposal (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary courseas defined below) or (ii) participate in any discussions or negotiations regardingconcerning, or furnish provide any person with confidential information with respect or data to, afford access to the disposition of the assets properties, books or any securities records of the Company or its Subsidiaries to, or have any part thereof (discussions with, any such proposal or offer being hereinafter referred Person relating to as an "Alternative Proposal"), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that nothing contained in this Section 5.1 shall prohibit the Company or its Board of Directors from: (i) at any time prior to obtaining the Company Shareholder Approval (the "Company Applicable Period"), participating in discussions or ------------------------- negotiations with, providing confidential information or data to, or affording access to the properties, books or records of the Company from (i) furnishing information to or entering into discussions or negotiations withits Subsidiaries to, any person or entity that makes an unsolicitedPerson who has made, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression in the good faith judgment of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in after consultation with its their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: -------- ---- (w) represents a financially superior transaction for such Alternative Proposal was not initiated, solicited or knowingly encouraged by the stockholders Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company as compared to the Merger, if, and only to the extent thathas complied with its obligations under this Section 5.1, (Ay) the Board of Directors of the Company, based upon the advice of after consultation with outside legal counsel, determines in good faith that such action is required for the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors of the Company to comply shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company's shareholders, if the Board of Directors of the Company determines in good faith, after consultation with its fiduciary duties outside legal counsel, that the failure to stockholders imposed by law, (B) prior to furnishing disclose such information to, or entering into discussions or negotiations with, such person or entity, would result in a breach of the fiduciary duty of the Board of Directors of the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), shareholders of the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; under applicable Law. Any actions permitted under clauses (i) and (ii) to above, and taken in compliance with the extent applicableforegoing, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than be deemed a confidentiality agreement in customary form)), or (C) affect breach of any other obligation covenant or agreement of the Company under such party contained in this Agreement.

Alternative Proposals. Prior EVT, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the Effective Timeassets of, the Company agrees that it will notor any material equity interest in, EVT or any of its Subsidiaries or any business combination with EVT or any of its Subsidiaries. EVT may, directly or indirectly, through furnish information and access, in each case only in response to unsolicited requests therefor, to any officercorporation, directorpartnership, agent person or otherwiseother entity or group pursuant to confidentiality agreements, and may participate in discussions and negotiate with such entity or group concerning (i) solicit any merger, consolidation, share exchange, business combination, or initiateother similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or more of the assets of EVT in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 15% or more of the outstanding shares of EVT Common Stock or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person having acquired beneficial ownership or the right to acquire beneficial ownership of, or any "group" (as such term is defined under Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) having been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of EVT Common Stock; or (v) 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, if such entity or group has submitted a written proposal or an indication of interest reasonably likely to lead to a written proposal to the Board relating to any such transaction (an "Alternative Proposal") and the Board by a majority vote determines in its good faith judgment, based as to legal matters on the advice of outside legal counsel and as to financial matters upon the advice of an investment banking firm of national reputation, that the Alternative Proposal is a Superior Proposal (as hereinafter defined) and that failing to take such action would constitute a breach of the Board's fiduciary duty. The Board shall provide a copy of any such written proposal or indication of interest to Guidant or Merger Sub immediately after receipt thereof and thereafter keep Guidant and Merger Sub promptly advised of any development with respect thereto. Except as set forth above, neither EVT or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, or encourage submission of inquiriesencourage, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Companysolicit, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets or any securities of the Company or any part thereof (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"); provided, however, that nothing contained in this Section 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing group (other than securities Guidant and Merger Sub, any affiliate or associate of an acquiror to be issued to holders Guidant and Merger Sub or any designees of shares of Common Stock in an acquisition thereof by merger or consolidationGuidant and Merger Sub) and that the Board of Directors of the Company in good faith determines concerning (in consultation with its financial advisorsi) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this Agreement.any

Alternative Proposals. Prior to the Effective Time, each of WWWX and the Company Acquisition Corp. agrees (a) that neither it will notnor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) to, initiate, solicit or encourage, directly or indirectly, through any officerinquiries or the making or implementation of any proposal or offer (including, directorwithout limitation, agent any proposal or otherwiseoffer to its shareholders) with respect to a merger, acquisition, consolidation or similar transaction involving, and purchase of (i) solicit all or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition significant portion of the assets or securities of the CompanyAcquisition Corp. or of any Subsidiary of the Acquisition Corp., or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets outstanding shares of Acquisition Corp. Common Stock or Preferred Stock or (iii) any securities of the Company outstanding shares of the capital stock or other equity interest of any part thereof Subsidiary of the Acquisition Corp. (any such proposal or offer being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal (excluding the Merger described in this Agreement), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; and (b) that it will notify Artra immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotia tions or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 5.1 4.1 shall prohibit the Board of Directors of the Company WWWX from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (Ai) the Board of Directors of the Company, based upon the advice of outside counselWWWX, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders shareholders imposed by law, (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company WWWX provides written notice to the Purchaser Artra to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (Ciii) subject to the same fiduciary standards as in the preceding clause (A), the Company WWWX keeps the Purchaser Artra informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 4.1 shall (Ax) permit the Company WWWX or Artra to terminate this Agreement (except as specifically provided in Article 7 6 hereof), (By) permit WWWX or the Company Acquisition Corp. to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, neither WWWX nor the Company Acquisition Corp. shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (Cz) affect any other obligation of WWWX, the Company Acquisition Corp. or the Merger Sub under this Agreement.

Alternative Proposals. Prior (a) The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties other than Parent or Merger Sub conducted heretofore with respect to a Transaction and, pursuant to the Effective Timeconfidentiality agreements with such parties, the Company agrees shall direct such parties to return to the Company all confidential information provided by or on behalf of the Company to such parties, shall direct such parties to destroy any documents or other materials they created containing confidential information provided by or on behalf of the Company, and shall use its reasonable best efforts to see that it will notsuch information is returned or destroyed. Neither the Company nor any of its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause its and its Subsidiaries respective officers, directors, employees, accountants, counsel, investment bankers, financial advisors and other representatives ("Representatives") not to, (i) --------------- directly or indirectly, through any officerinitiate, director, agent or otherwise, (i) solicit or initiateencourage, or take any action to facilitate the making of, any Takeover Proposal (as defined below), or (ii) directly or indirectly, engage in negotiations or encourage submission of inquiriesdiscussions with, proposals or offers from provide any potential buyer (other than the Purchaser) confidential information or data to, any person relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets or any securities of the Company or any part thereof (any such proposal or offer being hereinafter referred to as an "Alternative Takeover Proposal"); provided, however, that nothing contained at any time prior to the date of the Stockholders' meeting contemplated by Section 5.3 (the "Applicable Period"), the ----------------- Company may, in response to a Superior Proposal (as defined below) which was not solicited by it or any Representative of the Company and which did not otherwise result from a breach of this Section 5.1 shall prohibit 5.1(a), and subject to providing written notice of its decision to take such action to the Parent (the "Notice") and ------ compliance with Section 5.1(c), but only after the third business day following delivery of the Notice to Parent (x) furnish information with respect to the Company and/or its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) and (y) participate in discussions or negotiations regarding such Superior Proposal. (b) Neither the Board of Directors of the Company from nor any committee thereof shall (ix) furnishing information unless such Board or committee shall have determined in good faith that such action is required by its fiduciary duties under applicable law, withdraw or modify, or propose to withdraw or entering into discussions or negotiations withmodify, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject in a manner adverse to the arrangement Parent, such Board's or committee's approval or recommendation of financing the Merger or this Agreement, (y) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement (other than securities a confidentiality agreement in connection with a Superior Proposal which is entered into by the Company in accordance with Section 5.1(a) relating to any Takeover Proposal (each, an "Acquisition Agreement"), or (z) approve or recommend, or propose to --------------------- approve or recommend, any Takeover Proposal. Notwithstanding the foregoing, in response to a Superior Proposal which was not solicited by the Company, and which did not otherwise result from a breach of an acquiror Section 5.1(a), the Board of Directors of the Company may (subject to be issued this sentence) terminate this Agreement and concurrently with or after such termination, if it so chooses, cause the Company to holders enter into any Acquisition Agreement with respect to any Superior Proposal, but only at a time that is during the Applicable Period and is after the fifth business day following the Company's delivery of shares of Common Stock in an acquisition thereof by merger or consolidation) and written notice advising the Parent that the Board of Directors of the Company has resolved to accept a Superior Proposal (subject to such termination), specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal. (c) The Company promptly shall advise the Parent orally and in good faith determines writing of any Takeover Proposal or any inquiry with respect to any Takeover Proposal, the identity of the person making any such Takeover Proposal or inquiry and the material terms and conditions of any such Takeover Proposal or inquiry. The Company shall keep the Parent reasonably informed of the status and material terms and conditions of any such Takeover Proposal or inquiry. (d) Nothing contained in consultation this Agreement shall prohibit the Company or its Board of Directors from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act provided that the Company and its Board of Directors complies with its financial advisorsSection 5.1(b) represents hereof. For purposes of this Agreement, a financially superior transaction for "Takeover Proposal" means any ----------------- proposal or offer from any person relating to (i) any direct or indirect acquisition or purchase of a business that constitutes 15% or more of the stockholders net revenues, net income or assets of the Company and its Subsidiaries, taken as compared a whole, or 15% or more of the common stock or voting power (or of securities or rights convertible into or exercisable for such common stock or voting power) of the Company, (ii) any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of the common stock or voting power (or of securities or rights convertible into or exercisable for such common stock or voting power) of the Company, or (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries that constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries taken as a whole, in each case other than the transactions contemplated by this Agreement or transactions permitted under Section 5.2. Each of the transactions referred to in clauses (i)-(iii) of the foregoing definition of Takeover Proposal, other than the transactions contemplated by this Agreement and transactions permitted under Section 5.2 is referred to herein as an "Acquisition Transaction." ----------------------- For purposes of this Agreement, a "Superior Proposal" with respect to ----------------- the Company means any proposal (x) made by a third party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction, for consideration consisting of cash and/or securities, more than 50% of the combined voting power of the shares of Company Common Stock then outstanding or at least 50% of the assets of the Company and its Subsidiaries, taken together, (y) which is otherwise on terms which the Board of Directors of the Company determines in its good faith judgment (after consultation with a financial advisor and based on such other matters as the Board of Directors of the Company deems relevant) to be more favorable to the MergerCompany's stockholders than the Merger and for which financing, if, and only to the extent thatrequired, (A) is then committed or which, in the good faith judgment of the Board of Directors of the Company, based upon is reasonably capable of being obtained by such third party and (z) which such Board, after considering such matters as such Board deems relevant (including the advice of outside counsel), determines in good faith that such action the Company furnishing information to the third party, participating in discussions or negotiations with respect to the Superior Proposal or withdrawing or modifying its recommendation with respect to the Merger or recommending a Takeover Proposal, or terminating this Agreement, is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated its stockholders under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this Agreementapplicable law.

Alternative Proposals. Prior to the Effective Time, (a) Neither the Company agrees that it will notnor any of its Subsidiaries shall, and they shall cause their officers, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or its Subsidiaries) not to initiate, solicit, or knowingly encourage, directly or indirectly, through any officer, director, agent inquiries or otherwise, the making or implementation of any Alternative Proposal (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary courseas defined below) or (ii) participate in any discussions or negotiations regardingconcerning, or furnish provide any person with confidential information with respect or data to, afford access to the disposition of the assets properties, books or any securities records of the Company or its Subsidiaries to, or have any part thereof (discussions with, any such proposal or offer being hereinafter referred Person relating to as an "Alternative Proposal"), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that nothing contained in this Section 5.1 shall prohibit the Company or its Board of Directors of the Company from from: (i) furnishing information at any time prior to or entering into obtaining the Company Shareholder Approval (the "Company Applicable Period"), participating in discussions or negotiations with, any person providing confidential information or entity that makes an unsoliciteddata to, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject affording access to the arrangement properties, books or records of financing (other than securities the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in after consultation with its their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) represents a financially superior transaction for such Alternative Proposal was not initiated, solicited or knowingly encouraged by the stockholders Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company as compared to the Merger, if, and only to the extent thathas complied with its obligations under this Section 5.1, (Ay) the Board of Directors of the Company, based upon the advice of after consultation with outside legal counsel, determines in good faith that such action is required for the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors of the Company to comply shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company's shareholders, if the Board of Directors of the Company determines in good faith, after consultation with its fiduciary duties outside legal counsel, that the failure to stockholders imposed by law, (B) prior to furnishing disclose such information to, or entering into discussions or negotiations with, such person or entity, would result in a breach of the fiduciary duty of the Board of Directors of the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), shareholders of the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; under applicable Law. Any actions permitted under clauses (i) and (ii) to above, and taken in compliance with the extent applicableforegoing, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than be deemed a confidentiality agreement in customary form)), or (C) affect breach of any other obligation covenant or agreement of the Company under such party contained in this Agreement.

Alternative Proposals. Prior to the Effective Time(a) The Company agrees (x) that neither it nor any of its Subsidiaries shall, and the Company agrees that shall cause its officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it will notor any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, through any officerinquiries or the making or implementation of any proposal or offer (including, directorwithout limitation, agent any proposal or otherwiseoffer to its stockholders) with respect to a merger, (i) solicit acquisition, consolidation, share exchange or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Companysimilar transaction involving, or any part thereof (other than sales purchase of inventory in the ordinary course) all or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition significant portion of the assets or any securities of of, the Company or any part thereof of its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"); provided) or engage in any negotiations concerning, howeveror provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or otherwise facilitate (including by waiving the terms of any confidentiality or standstill agreement) any effort or attempt to make or implement an Alternative Proposal and (y) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1. (b) Notwithstanding the foregoing, nothing contained in this Section 5.1 7.1 shall prohibit the Board of Directors of the Company or its designees from (i) furnishing information to or entering into discussions or negotiations with, with any person or entity that makes an unsolicited, unsolicited bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (Aw) the furnishing of such information is pursuant to a reasonable and customary confidentiality agreement, (which confidentiality agreement shall be on terms no more favorable in the aggregate to such person or entity than those set forth in the confidentiality agreement between the Company and Apollo Management, L.P.), (x) the Board of Directors of the Company, based upon the advice of outside counsel, Company determines in good faith after consultation with outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (By) prior the Board of Directors of the Company determines in good faith after consultation with its financial advisor that such Alternative Proposal, if accepted, is reasonably likely to furnishing be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person or entity making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement and (z) the Company is otherwise in compliance with this Section 7.1. Nothing in this Section 7.1 shall prevent the Company from complying with Rule 14e2 under the Exchange Act, to the extent applicable. (c) The Company agrees that it will notify Sub immediately if any such inquiries or proposals are received by (including the identity of the party making the inquiry or proposal and the terms of the proposal), any such information tois requested from the Company, or entering into any such negotiations or discussions are sought to be initiated or negotiations with, such person or entity, continued with the Company. The Company provides written notice to the Purchaser to the effect agrees that it is furnishing information towill keep Sub informed, or entering into discussions or negotiations withon an immediate basis, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to the terms of any such discussions or negotiations; and (ii) , including any amendments or modifications to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. proposal. (d) Nothing in this Section 5.1 7.1 shall (Ax) permit the Company to terminate this Agreement (except as specifically provided in Article 7 9 hereof), (By) permit the Company to enter into any agreement (other than the confidentiality agreement contemplated by Section 7.1(b)(w)) with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (Agreement, it being agreed that for as long as during the term of this Agreement remains in effectAgreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than a confidentiality agreement in customary form))Proposal, or (Cz) affect any other obligation of the Company under this Agreement.

Alternative Proposals. Prior The Company agrees that, except as and to the Effective Timeextent consented to by the Noteholders, neither it nor any of its Subsidiaries nor any of the Company agrees officers and directors of it or its Subsidiaries shall, and that it will notshall direct and use its 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, through any officer, director, agent or otherwise, (i) solicit or initiate, directly solicit, encourage or indirectlyotherwise facilitate any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or encourage submission similar transaction involving (or any purchase, issuance or exchange of inquiries, proposals 20% or offers from any potential buyer (other than the Purchaser) relating to the disposition more of the assets or securities of the Company, indebtedness or any part thereof (other than sales of inventory in the ordinary courseequity or debt securities of) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect to, the disposition of the assets it or any securities of the Company or any part thereof its Subsidiaries (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"); provided. Notwithstanding the foregoing, however, that nothing contained in this Section 5.1 Agreement shall prohibit prevent the Company or its Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Merger, if, and only to the extent that, (A) the Board of Directors of the Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing ; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Alternative Proposal 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 (as defined below), it being understood that such confidentiality agreement need not prohibit the making, or amendment, of an Alternative Proposal; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Alternative Proposal; or (D) recommending such an Alternative Proposal to the stockholders and noteholders of the Company, if and only to the extent that in the case referred to in this Section 5.1 shall clause (A) permit D), the Board of Directors of the Company (i) determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to terminate comply with their fiduciary duties under applicable law and (ii) determines in good faith (after consultation with its financial advisor) that such Alternative Proposal, if accepted, is reasonably likely to be consummated, 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 transaction more favorable from a financial point of view to the Company and the Persons to whom fiduciary duties are owed by the Board of Directors than the transactions contemplated by this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an such more favorable Alternative Proposal for as long as being referred to in this Agreement remains as a "Superior Proposal"). The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in effect (the first sentence hereof of the obligations undertaken in this Section. The Company agrees that it being agreed that for as long as this Agreement remains will notify the Holders immediately 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 effectconnection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep the Holders informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company shall not enter into also agrees that it will take all steps to maintain and enforce any agreement heretofore executed confidentiality agreements in connection with any person that provides for, or in any way facilitates, an its consideration of a potential Alternative Proposal (other than a confidentiality agreement in customary form)), or (C) affect any other obligation of the Company under this AgreementProposal.

Alternative Proposals. Prior to the Effective Time, (a) Neither the Company agrees that it will notnor any of its Subsidiaries shall, and they shall cause their officers, directors and employees and direct their agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by the Company or its Subsidiaries) not to initiate, solicit, or knowingly encourage, directly or indirectly, through any officer, director, agent inquiries or otherwise, the making or implementation of any Alternative Proposal (i) solicit or initiate, directly or indirectly, or encourage submission of inquiries, proposals or offers from any potential buyer (other than the Purchaser) relating to the disposition of the assets or securities of the Company, or any part thereof (other than sales of inventory in the ordinary courseas defined below) or (ii) participate in any discussions or negotiations regardingconcerning, or furnish provide any person with confidential information with respect or data to, afford access to the disposition of the assets properties, books or any securities records of the Company or its Subsidiaries to, or have any part thereof (discussions with, any such proposal or offer being hereinafter referred Person relating to as an "Alternative Proposal"), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that nothing contained in this Section 5.1 shall prohibit the Company or its Board of Directors of the Company from from: (i) furnishing information at any time prior to or entering into obtaining the Company Shareholder Approval (the “Company Applicable Period”), participating in discussions or negotiations with, any person providing confidential information or entity that makes an unsoliciteddata to, bona fide Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to lead to an Alternative Proposal, which is not subject affording access to the arrangement properties, books or records of financing (other than securities the Company or its Subsidiaries to, any Person who has made, in the good faith judgment of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in after consultation with its their financial advisors, a bona fide written Alternative Proposal that would reasonably be expected to result in a Superior Proposal (as defined below); provided that: (w) represents a financially superior transaction for such Alternative Proposal was not initiated, solicited or knowingly encouraged by the stockholders Company, its Subsidiaries or their agents in violation of this Section 5.1, (x) the Company as compared to the Merger, if, and only to the extent thathas complied with its obligations under this Section 5.1, (Ay) the Board of Directors of the Company, based upon the advice of after consultation with outside legal counsel, determines in good faith that such action is required for the failure to so participate in discussions or negotiations, provide confidential information or data or afford access would result in a breach of the fiduciary duty of the Board of Directors of the Company to comply shareholders of the Company under applicable Law and (z) a copy of all the information provided to such Person is delivered simultaneously to Parent if it has not previously been furnished or made available to Parent or (ii) making such disclosure to the Company’s shareholders, if the Board of Directors of the Company determines in good faith, after consultation with its fiduciary duties outside legal counsel, that the failure to stockholders imposed by law, (B) prior to furnishing disclose such information to, or entering into discussions or negotiations with, such person or entity, would result in a breach of the fiduciary duty of the Board of Directors of the Company provides written notice to the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), shareholders of the Company keeps the Purchaser informed of the status and all material information with respect to any such discussions or negotiations; under applicable Law. Any actions permitted under clauses (i) and (ii) to above, and taken in compliance with the extent applicableforegoing, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (A) permit the Company to terminate this Agreement (except as specifically provided in Article 7 hereof), (B) permit the Company to enter into any agreement with respect to an Alternative Proposal for as long as this Agreement remains in effect (it being agreed that for as long as this Agreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal (other than be deemed a confidentiality agreement in customary form)), or (C) affect breach of any other obligation covenant or agreement of the Company under such party contained in this Agreement.

Alternative Proposals. Prior to From the Effective TimeDate until the Closing of the Transaction contemplated by, or termination of, this Agreement, and except for the Company agrees Excluded Assets used solely in the conduct of the Excluded Businesses, Sellers agree (a) that it will notnone of them shall, and they shall direct and use their reasonable best efforts to cause the officers, directors, employees, agents and representatives of Sellers (including, without limitation, any investment banker, attorney or accountant retained by any Seller) not to initiate, solicit or encourage, directly or indirectly, through any officerinquiries or the making or implementation of any proposals or offer (including, directorwithout limitation, agent any proposal or otherwiseoffer to its board of directors) with respect to a merger, (i) solicit acquisition, consolidation or initiate, directly or indirectlysimilar transaction involving, or encourage submission any purchase of inquiries, proposals all or offers from any potential buyer (other than the Purchaser) relating to the disposition significant portion of the assets or securities of the Companyequity or membership interests of, or any part thereof (other than sales of inventory in the ordinary course) or (ii) participate in any discussions or negotiations regarding, or furnish any person with information with respect toSellers, the disposition of Subsidiary or the assets or any securities of the Company or any part thereof Joint Venture (any such proposal or offer being hereinafter referred to as an "Alternative Proposal")) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person to implement an Alternative Proposal; providedand (b) that Sellers will promptly cease and cause to be terminated any existing activities, howeverdiscussions or negotiations with any Persons conducted heretofore with respect to any of the foregoing, and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section; provided that nothing contained in this Section 5.1 shall prohibit the Board board of Directors directors of the Company any Seller from (i) furnishing information to or entering into discussions or negotiations with, with any person or entity Person that makes an unsolicited, unsolicited bona fide Alternative Proposal proposal to acquire Sellers, the Subsidiary or delivers an unsolicitedthe Joint Venture pursuant to a merger, bona fideconsolidation, written expression share exchange, purchase of interest that could reasonably be expected to lead to an Alternative Proposala substantial portion of assets, which is not subject to the arrangement of financing (business combination or other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to the Mergersimilar transactions, if, and only to the extent that, (A) the Board relevant board of Directors of the Company, based upon the advice of outside counsel, directors determines in good faith that such action is required for the Board of Directors board to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations withwith such Person, such person or entity, the Company provides Sellers provide written notice to the Purchaser Purchasers to the effect that it is furnishing information to, or entering into discussions or negotiations with, with such person or entityPerson, and (C) subject to the same any confidentiality agreement with such Person (which Sellers determine in good faith is required to be executed in order for its board to comply with fiduciary standards as in the preceding clause (Aduties imposed by law), the Company keeps the Purchaser Sellers keep Purchasers informed of the status and all material information with respect to (not the terms) of any such discussions or negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 5.1 shall (Ax) permit the Company Sellers to terminate this Agreement (except as specifically provided in Article 7 hereof16), (By) permit the Company Sellers to enter into any agreement with respect to an Alternative Proposal for as long as during the term of this Agreement remains in effect (it being agreed that for as long as during the term of this Agreement remains in effect, the Company Sellers shall not enter into any agreement with any person Person that provides for, for or in any way facilitates, facilitates an Alternative Proposal (other than a confidentiality agreement in customary form)), or (Cz) affect any other obligation of the Company under this Agreement.