Common use of No Inconsistent Activities Clause in Contracts

No Inconsistent Activities. (a) The Company hereby agrees that, for a period of forty five (45) days from the date hereof (the “Applicable Period”), it shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action designed to facilitate, any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below), or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish to any person any nonpublic information with respect to a Takeover Proposal, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of this Agreement, the Company receives a bona fide Takeover Proposal that did not result from a breach of this Section 1, and the Board of Directors of the Company (the “Board”) determines in good faith, (A) after consultation with its outside legal and financial advisors, that such Takeover Proposal is, or is reasonably likely to result in, a Superior Proposal (as defined in Section 1(c)), and (B) after consultation with its outside legal advisor, that failure to do so is reasonably likely to result in a breach of the Board’s fiduciary obligations under applicable law, the Company may (x) furnish information with respect to the Company to the person making such proposal (and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in the

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company's representations contained in Section 3.1(j), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or its Board of Directors from furnishing nonpublic information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide written proposal for a Takeover Proposal by such person, if and only to the extent that did not result from (i) such person has made a breach of this Section 1, and written proposal to the Board of Directors of the Company to consummate a Takeover Proposal, which proposal identifies a price or range of values to be paid for the outstanding securities or all or substantially all of the assets of the Company, (ii) the “Board”) Board of Directors of the Company determines in good faith, (A) after consultation with its outside legal and a financial advisorsadvisor of nationally recognized reputation, that such Takeover Proposal is, or is reasonably likely capable of being completed on substantially the terms proposed (which determination shall include confirmation that the party making the Takeover Proposal will have any funds necessary to complete the Takeover Proposal) and such Takeover Proposal would, if so completed, result in, in at transaction that would provide greater value to the holders of Company Common Stock than the Merger (a Superior Proposal (as defined in Section 1(c)"SUPERIOR PROPOSAL"), and (Biii) after consultation with the Board of Directors of the Company determines in good faith, based on the advice of its outside legal advisorcounsel, that failure such action is necessary in order to do so is reasonably likely comply with its fiduciary duties to result in a breach the holders of the Board’s fiduciary obligations Company Common Stock under applicable law, and (iv) before furnishing such nonpublic information to, or entering into discussions or negotiations with, such person, the Board of Directors receives from such person an executed confidentiality agreement in form and substance substantially similar to the confidentiality agreement dated June 21, 2001 between the Company may and Parent (xthe "Confidentiality Agreement"). (b) furnish information The Company shall notify Parent orally and in writing of any inquiries, offers or proposals with respect to a Takeover Proposal (including without limitation the terms and conditions of such proposal, the identity of the person or entity making it and all other information reasonably requested by Parent), within 48 hours of the receipt thereof, shall keep Parent informed of the status and details of any such inquiry, offer or proposal and answer Parent's questions with respect thereto. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any proposal (whether or not in writing and whether or not delivered to the Company's stockholders generally) for a merger, consolidation, purchase of assets, tender offer or other business combination involving the Company or any of its subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in, 10% or more of the person making such proposal (and voting securities of, or a substantial portion of the assets of, the Company or any of its representativessubsidiaries, other than the transactions contemplated by this Agreement. Neither the Company nor any of its subsidiaries shall directly or indirectly, release any third party from any confidentiality agreement. Nothing contained herein shall prohibit the Company from disclosing to its stockholders the statement required by Rule 14e-2(a) pursuant under the Exchange Act with respect to a confidentiality agreement containing terms no less favorable in theTakeover Proposal by means of a tender offer.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby prior to the execution of this Agreement to, among other things, the transactions contemplated hereby, and to various alternatives to the transactions contemplated by this Agreement, and in light of the Company's representations contained in Section 3.14, the Company agrees that, for a period of forty five (45) days from the date hereof (the “Applicable Period”), that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or expressly permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicitsolicit or initiate, initiate or encourageencourage the submission of, any Acquisition Proposal, or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in may reasonably be expected to lead to, any Acquisition Proposal; PROVIDED, HOWEVER, that the foregoing shall not prohibit the Company's Board of Directors from furnishing information to or entering into discussions or negotiations or discussions regarding any Takeover Proposal or furnish to with, any person or entity that makes an unsolicited bona fide proposal to enter into a business combination with the Company pursuant to an Acquisition Proposal which the Company's Board of Directors determines in good faith is more favorable from a financial point of view to the Company's stockholders than the transactions contemplated by this Agreement (a "SUPERIOR PROPOSAL") so long as prior to furnishing such information to, or entering into discussions or negotiations with, such a person or entity, the Company provides two (2) business days' advance written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a person or entity from whom the Company has received an executed confidentiality agreement in form and substance similar to the Confidentiality Agreements. The Company shall notify Parent orally and in writing of the fact that it received inquiries, offers or proposals with respect to an Acquisition Proposal, within 24 hours after the Company obtains Knowledge of the receipt thereof, and shall give Parent five (5) business days' advance notice (which notice shall include the terms and conditions of such proposal) of any nonpublic agreement to be entered into with, or any information supplied to, any person or entity making such inquiry, offer or proposal. Nothing contained herein shall prohibit the Company from disclosing to its shareholders the statement required by Rule 14e-2(a) under the Exchange Act with respect to an Acquisition Proposal by means of a tender offer. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any other person that have been conducted heretofore with respect to a Takeover potential Acquisition Proposal. Except in connection with a Superior Proposal, the Company agrees to enforce and not to waive or (iii) approve or endorse or recommend release any Takeover Proposal, or (iv) enter into confidentiality agreements which any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement persons have entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of this Agreement, the Company receives a bona fide Takeover Proposal that did not result from a breach of this Section 1, and the Board of Directors of the Company (the “Board”) determines in good faith, (A) after consultation with its outside legal and financial advisors, that such Takeover Proposal is, or is reasonably likely to result in, a Superior Proposal (as defined in Section 1(c)), and (B) after consultation with its outside legal advisor, that failure to do so is reasonably likely to result in a breach of the Board’s fiduciary obligations under applicable law, the Company may (x) furnish information with respect to the Company to the person making such proposal (and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in theCompany.

No Inconsistent Activities. In light of the consideration given by the Board of Directors of the Company prior to the execution of this Agreement to, among other things, the transactions contemplated hereby, and in light of advice received from the Company's financial advisors, the Company agrees that it shall (a) The terminate any existing discussions and/or negotiations with other parties concerning the potential acquisition of the Company hereby agrees thator any other transaction that would be inconsistent with the transactions contemplated hereby, for a period and (b) not, nor shall it permit any of forty five (45) days from the date hereof (the “Applicable Period”), it shall notits subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of this Agreement, foregoing clauses (a) and (b) shall not prohibit the Company receives a bona fide Takeover Proposal that did not result from a breach of this Section 1, and the Company's Board of Directors from furnishing information to or entering into discussions or negotiations with any person or entity that makes an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the Company assets, business combination or other similar transaction, if, and only to the extent that, (i) the “Board”) Company's Board of Directors determines in good faith, after considering applicable law and receiving the written advice of outside counsel, that such action is required by its fiduciary duties to the Company's Stockholders under applicable law, (Aii) the Company's Board of Directors determines in good faith, after consultation with receiving the written advice of its outside legal and financial advisors, that such Takeover Proposal is, or unsolicited proposal is financially superior to the transaction contemplated hereby and the party making the proposal has demonstrated that the funds necessary for its proposal are reasonably likely to result in, be available (a Superior Proposal (as defined in Section 1(c)"SUPERIOR PROPOSAL"), and (Biii) after consultation with its outside legal advisorprior to furnishing such information to, that failure to do so is reasonably likely to result in a breach of the Board’s fiduciary obligations under applicable lawor entering into discussions or negotiations with, such person or entity, the Company may (x) furnish information with respect provides written notice to Parent to the Company to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person making or entity and receives from such proposal (and its representatives) pursuant to a person or entity an executed confidentiality agreement containing terms no less favorable in thereasonably customary form. The Company shall notify Parent orally and in writing of any inquiries,

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company's representations contained in Section 3.1(j), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or its Board of Directors from furnishing nonpublic information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide written proposal for a Takeover Proposal by such person, if and only to the extent that did not result from (i) such person has made a breach of this Section 1, and written proposal to the Board of Directors of the Company to consummate a Takeover Proposal, which proposal identifies a price or range of values to be paid for the outstanding securities or all or substantially all of the assets of the Company, (ii) the “Board”) Board of Directors of the Company determines in good faith, (A) after consultation with its outside legal and a financial advisorsadvisor of nationally recognized reputation, that such Takeover Proposal is, or is reasonably likely capable of being completed on substantially the terms proposed (which determination shall include confirmation that the party making the Takeover Proposal will have any funds necessary to complete the Takeover Proposal) and such Takeover Proposal would, if so completed, result in, in at transaction that would provide greater value to the holders of Company Common Stock than the Merger (a "Superior Proposal (as defined in Section 1(c)Proposal"), and (Biii) after consultation with the Board of Directors of the Company determines in good faith, based on the advice of its outside legal advisorcounsel, that failure such action is necessary in order to do so is reasonably likely comply with its fiduciary duties to result in a breach the holders of the Board’s fiduciary obligations Company Common Stock under applicable law, and (iv) before furnishing such nonpublic information to, or entering into discussions or negotiations with, such person, the Board of Directors receives from such person an executed confidentiality agreement in form and substance substantially similar to the confidentiality agreement dated June 21, 2001 between the Company may and Parent (xthe "Confidentiality Agreement"). (b) furnish information The Company shall notify Parent orally and in writing of any inquiries, offers or proposals with respect to a Takeover Proposal (including without limitation the terms and conditions of such proposal, the identity of the person or entity making it and all other information reasonably requested by Parent), within 48 hours of the receipt thereof, shall keep Parent informed of the status and details of any such inquiry, offer or proposal and answer Parent's questions with respect thereto. For purposes of this Agreement, "Takeover Proposal" means any proposal (whether or not in writing and whether or not delivered to the Company's stockholders generally) for a merger, consolidation, purchase of assets, tender offer or other business combination involving the Company or any of its subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in, 10% or more of the person making such proposal (and voting securities of, or a substantial portion of the assets of, the Company or any of its representativessubsidiaries, other than the transactions contemplated by this Agreement. Neither the Company nor any of its subsidiaries shall directly or indirectly, release any third party from any confidentiality agreement. Nothing contained herein shall prohibit the Company from disclosing to its stockholders the statement required by Rule 14e-2(a) pursuant under the Exchange Act with respect to a confidentiality agreement containing terms no less favorable in theTakeover Proposal by means of a tender offer.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company's representations contained in Section 3.1(i), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or -------- ------- its Board of Directors from furnishing non-public information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide Takeover Proposal by such person, if and only to the extent that did not result from (i) such person has made a breach of this Section 1, and Superior Proposal to the Board of Directors of the Company to consummate a Takeover Proposal, (ii) the “Board”) Board of Directors of the Company determines in good faith, (A) after consultation with its outside legal and financial advisors, that such Takeover Proposal is, or is reasonably likely to result in, a Superior Proposal (as defined in Section 1(c)), and (B) after consultation with its outside legal advisorcounsel, that failure to do so is reasonably likely take such action would be inconsistent with the proper exercise of its fiduciary duties to result in a breach the holders of the Board’s fiduciary obligations Company Common Stock under applicable lawlaw and (iii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company may (x) furnish information with respect Board of Directors receives from such person an executed confidentiality agreement in form and substance similar to the provisions set forth in Section 5.2. For purposes of this Agreement, a "Superior Proposal" means an unsolicited, bona fide offer made by a third party to purchase all of the outstanding shares of Company Common Stock or substantially all of the assets of the Company on terms that the Board of Directors of the Company determines in good faith, after consultation with an independent financial advisor of nationally recognized reputation, to be more favorable to the person making Company's stockholders than the terms of the Merger; provided, however, that any such proposal (offer shall not be deemed to be a "Superior Proposal" if any financing required to consummate the transaction contemplated by such offer is not committed and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in theis not reasonably capable of being obtained by such third party.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company's representations contained in Section 3.1(u), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or its Board of Directors from furnishing non-public information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide Takeover Proposal by such person, if and only to the extent that did not result from (i) such person has made a breach of this Section 1, and proposal to the Board of Directors of the Company to consummate a Takeover Proposal, which proposal identifies a price or range of values to be paid for the outstanding securities or all or substantially all of the assets of the Company, (ii) the “Board”) Board of Directors of the Company determines in good faith, (A) after consultation with its outside legal and a financial advisorsadvisor of nationally recognized reputation, that such Takeover Proposal isproposal would, or is if so completed, result in a transaction that would provide greater value to the holders of Company Common Stock than the Merger (a "Superior Proposal") and that the party making the proposal has demonstrated that the funds necessary for its proposal are reasonably likely to result inbe available, a Superior Proposal (as defined iii) the Board of Directors of the Company determines in Section 1(c))good faith, and (B) after consultation with its outside legal advisorcounsel, that failure such action is necessary in order to do so is reasonably likely comply with its fiduciary duties to result in a breach of the Board’s fiduciary obligations Company's stockholders under applicable law, and (iv) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Board of Directors receives from such person an executed confidentiality agreement in form and substance similar to the Confidentiality Agreement dated March 13, 1998 (the "Confidentiality Agreement") between the Company may and Parent. (xb) furnish information The Company shall notify Parent orally and in writing of any inquiries, offers or proposals with respect to a Takeover Proposal (including without limitation the terms and conditions of such proposal, the identity of the person or entity making it and all other information reasonably requested by Parent), within 24 hours of the receipt thereof by an officer or director of the Company or any advisor to the person making Company, shall keep Parent informed of the status and details of any such inquiry, offer or proposal and answer Parent's questions with respect thereto. For purposes of this Agreement, "Takeover Proposal" means any proposal (whether or not in writing and whether or not delivered to the Company's stockholders generally) for a merger, consolidation, purchase of assets, tender offer or other business combination involving the Company or any of its representativessubsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in, any voting securities of, or a substantial portion of the assets of, the Company or any of its subsidiaries, other than the transactions contemplated by this Agreement. Neither the Company nor any of its subsidiaries shall directly or indirectly, release any third party from any confidentiality agreement, except in connection with a Superior Proposal if the Company's Board of Directors shall have determined in good faith, after consultation with outside counsel, that such release of any third party is necessary in order to comply with its fiduciary duties to the Company's stockholders under applicable law. Nothing contained herein shall prohibit the Company from disclosing to its stockholders the statement required by Rule 14e- 2(a) pursuant under the Exchange Act with respect to a confidentiality agreement containing terms no less favorable in theTakeover Proposal by means of a tender offer.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45the Company's representations contained in Sections 3.1(j) days from the date hereof (the “Applicable Period”and 3.1(v), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or its Board of Directors from (i) taking any non-appealable, final action ordered to be taken by the Company or its subsidiaries by any court of competent jurisdiction or (ii) furnishing information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide Takeover Proposal that did not result from a breach by such person, if and only to the extent that, in the case of this Section 1clause (ii), and (i) the Board of Directors of the Company (the “Board”) determines in good faith, after consultation with legal counsel and a financial advisor of nationally recognized reputation, that such action would reasonably likely lead to a transaction that would provide greater value to the holders of Company Common Stock than the Merger (Aa "SUPERIOR PROPOSAL") and that the party making the proposal has demonstrated that the funds necessary for its proposal are reasonably likely to be available, (ii) the Board of Directors of the Company determines in good faith, after consultation with its outside legal and financial advisorscounsel, that the failure to take such Takeover Proposal is, or is reasonably likely action would be inconsistent with its fiduciary duties to result in, a Superior Proposal (as defined in Section 1(c))the holders of Company Common Stock under applicable law, and (Biii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Board of Directors receives from such person an executed confidentiality agreement in form and substance similar to the Confidentiality Agreement dated June 6, 2003 between the Company and Parent (the "CONFIDENTIALITY AGREEMENT"). For purposes of this Agreement, Xxxxxxx shall be considered a financial advisor of nationally recognized reputation. (b) The Company shall notify Parent orally and in writing of any offers or proposals with respect to a Takeover Proposal (including the terms and conditions of such proposal, the identity of the person or entity making it and all other information reasonably requested by Parent), within 24 hours of the receipt thereof by an officer or director of the Company or any financial advisor to the Company, shall keep Parent informed of the status and material details of any such offer or proposal and answer Parent's questions with respect thereto. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any proposal (whether or not in writing and whether or not delivered to the Company's stockholders generally) for a merger, consolidation, purchase of assets (other than a purchase of inventory in the ordinary course of business), tender offer or other business combination involving the Company or any of its subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in, any voting securities of, or a substantial portion of the assets of, the Company or any of its subsidiaries whose assets constitute more than 15% of the combined assets of the Company and its subsidiaries, other than the transactions contemplated by this Agreement. Neither the Company nor any of its subsidiaries shall directly or indirectly release any third party from any confidentiality agreement relating to a Takeover Proposal. Nothing contained in this Agreement shall prohibit the Company from disclosing to its stockholders the statement required by Rule 14e-2(a) under the Exchange Act with respect to a Takeover Proposal by means of a tender offer or from making any disclosure to its stockholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with its outside legal advisorcounsel, that failure to do so is reasonably likely to result in disclose would be a breach violation of the Board’s fiduciary its obligations under applicable law, the Company may (x) furnish information with respect to the Company to the person making such proposal (and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in the.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby prior to the execution of this Agreement to, among other things, the transactions contemplated hereby, and to various alternatives to the transactions contemplated by this Agreement, and in light of the Company's representations contained in Section 3.14, the Company agrees that, for a period of forty five (45) days from the date hereof (the “Applicable Period”), that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or expressly permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, (i) solicitsolicit or initiate, initiate or encourageencourage the submission of, any Acquisition Proposal, or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in may reasonably be expected to lead to, any negotiations or discussions regarding any Takeover Proposal or furnish to any person any nonpublic information with respect to a Takeover Acquisition Proposal, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that ifthe foregoing shall not prohibit the Company's Board of Directors from furnishing information to or entering into discussions or negotiations with, at any time during person or entity that makes an unsolicited bona fide proposal to enter into a business combination with the term Company pursuant to an Acquisition Proposal which the Company's Board of Directors determines in good faith is more favorable from a financial point of view to the Company's stockholders than the transactions contemplated by this AgreementAgreement (a "Superior Proposal") so long as prior to furnishing such information to, or entering into discussions or negotiations with, such a person or entity, the Company receives provides two (2) business days' advance written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a bona fide Takeover Proposal person or entity from whom the Company has received an executed confidentiality agreement in form and substance similar to the Confidentiality Agreements. The Company shall notify Parent orally and in writing of the fact that did not result from a breach it received inquiries, offers or proposals with respect to an Acquisition Proposal, within 24 hours after the Company obtains Knowledge of this Section 1the receipt thereof, and shall give Parent five (5) business days' advance notice (which notice shall include the Board terms and conditions of Directors such proposal) of any agreement to be entered into with, or any information supplied to, any person or entity making such inquiry, offer or proposal. Nothing contained herein shall prohibit the Company (from disclosing to its shareholders the “Board”statement required by Rule 14e-2(a) determines under the Exchange Act with respect to an Acquisition Proposal by means of a tender offer. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any other person that have been conducted heretofore with respect to a potential Acquisition Proposal. Except in good faith, (A) after consultation connection with its outside legal and financial advisors, that such Takeover Proposal is, or is reasonably likely to result in, a Superior Proposal (as defined in Section 1(c)), and (B) after consultation with its outside legal advisor, that failure to do so is reasonably likely to result in a breach of the Board’s fiduciary obligations under applicable lawProposal, the Company may (x) furnish information agrees to enforce and not to waive or release any confidentiality agreements which any persons have entered into with respect to the Company to the person making such proposal (and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in theCompany.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company's representations contained in Section 3.1(u), the Company agrees that it shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of nothing in this Agreement, Section 4.2 shall prevent the Company receives a or its Board of Directors from furnishing non-public information to, or entering into discussions or negotiations with, another person in connection with an unsolicited bona fide Takeover Proposal by such person, if and only to the extent that did not result from (i) such person has made a breach of this Section 1, and proposal to the Board of Directors of the Company to consummate a Takeover Proposal, which proposal identifies a price or range of values to be paid for the outstanding securities or all or substantially all of the assets of the Company, (ii) the “Board”) Board of Directors of the Company determines in good faith, (A) after consultation with its outside legal and a financial advisorsadvisor of nationally recognized reputation, that such Takeover Proposal isproposal would, or is if so completed, result in a transaction that would provide greater value to the holders of Company Common Stock than the Merger (a "Superior Proposal") and that the party making the proposal has demonstrated that the funds necessary for its proposal are reasonably likely to result inbe available, a Superior Proposal (as defined iii) the Board of Directors of the Company determines in Section 1(c))good faith, and (B) after consultation with its outside legal advisorcounsel, that failure such action is necessary in order to do so is reasonably likely comply with its fiduciary duties to result in a breach of the Board’s fiduciary obligations Company's stockholders under applicable law, and (iv) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Board of Directors receives from such person an executed confidentiality agreement in form and substance similar to the Confidentiality Agreement dated March 13, 1998 (the "Confidentiality Agreement") between the Company may and Parent. (xb) furnish information The Company shall notify Parent orally and in writing of any inquiries, offers or proposals with respect to a Takeover Proposal (including without limitation the terms and conditions of such proposal, the identity of the person or entity making it and all other information reasonably requested by Parent), within 24 hours of the receipt thereof by an officer or director of the Company or any advisor to the person making Company, shall keep Parent informed of the status and details of any such inquiry, offer or proposal and answer Parent's questions with respect thereto. For purposes of this Agreement, "Takeover Proposal" means any proposal (whether or not in writing and whether or not delivered to the Company's stockholders generally) for a merger, consolidation, purchase of assets, tender offer or other business combination involving the Company or any of its representativessubsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in, any voting securities of, or a substantial portion of the assets of, the Company or any of its subsidiaries, other than the transactions contemplated by this Agreement. Neither the Company nor any of its subsidiaries shall directly or indirectly, release any third party from any confidentiality agreement, except in connection with a Superior Proposal if the Company's Board of Directors shall have determined in good faith, after consultation with outside counsel, that such release of any third party is necessary in order to comply with its fiduciary duties to the Company's stockholders under applicable law. Nothing contained herein shall prohibit the Company from disclosing to its stockholders the statement required by Rule 14e-2(a) pursuant under the Exchange Act with respect to a confidentiality agreement containing terms no less favorable in theTakeover Proposal by means of a tender offer.

No Inconsistent Activities. (a) The In light of the consideration given by the Board of Directors of the Company hereby agrees thatprior to the execution of this Agreement to, for a period among other things, the transactions contemplated hereby, and in light of forty five (45) days from the date hereof (the “Applicable Period”Company’s representations contained in Section 3.1(j), and Section 3.1(w), the Company agrees that it shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company to, directly or indirectly, (i) solicit, initiate or encourage, or take any other action designed to facilitate, any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below), or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish to any person Person any nonpublic information with respect to a Takeover Proposal, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)below); provided, however, that if, at any time during the term prior to obtaining Shareholder Approval of adoption of this AgreementAgreement (the “Applicable Period”), the Company receives a bona fide Takeover Proposal that did not result from a breach of this Section 14.2(a), and the Board of Directors of the Company (the “Board”) determines in good faith, (A) after consultation with its outside legal and financial advisors, that such Takeover Proposal is, or is reasonably likely to result in, a Superior Proposal (as defined in Section 1(c)4.2(c) hereof), and (B) after consultation with its outside legal advisor, that failure to do so is reasonably likely to result in a breach of the Board’s Board of Directors’ fiduciary obligations under applicable law, the Company may (x) furnish information with respect to the Company to the person Person making such proposal (and its representatives) pursuant to a confidentiality agreement containing terms no less favorable in thethe aggregate to the Company than those set forth in that certain Confidentiality Agreement (the “Confidentiality Agreement”), dated as of September 8, 2005, between Parent and the Company (provided, that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal) and (y) participate in discussions or negotiations regarding such proposal. The Company shall, and shall cause officers, directors, employees, investment bankers, financial advisors, attorneys, accountants or other representatives retained by it to, immediately cease and cause to be terminated any discussions or negotiations with any third party (other than Parent or Merger Sub) conducted heretofore with respect to any Takeover

No Inconsistent Activities. In light of the -------------------------- consideration given by the Board of Directors of the Company prior to the execution of this Agreement to, among other things, the transactions contemplated hereby, and in light of advice received from the Company's financial advisors, the Company agrees that it shall (a) The terminate any existing discussions and/or negotiations with other parties concerning the potential acquisition of the Company hereby agrees thator any other transaction that would be inconsistent with the transactions contemplated hereby, for a period and (b) not, nor shall it permit any of forty five (45) days from the date hereof (the “Applicable Period”), it shall notits subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries to, directly or indirectly, solicit or initiate, or encourage the submission of, any Takeover Proposal (i) solicitas defined below), initiate or encourageparticipate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate, facilitate any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in any negotiations or discussions regarding any Takeover Proposal or furnish may reasonably be expected to any person any nonpublic information with respect to a Takeover Proposallead to, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of this Agreement, foregoing clauses (a) and (b) shall not prohibit the Company receives a bona fide Takeover Proposal that did not result from a breach of this Section 1, and the Company's Board of Directors from furnishing information to or entering into discussions or negotiations with any person or entity that makes an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the Company assets, business combination or other similar transaction, if, and only to the extent that, (i) the “Board”) Company's Board of Directors determines in good faith, after considering applicable law and receiving the written advice of outside counsel, that such action is required by its fiduciary duties to the Company's Stockholders under applicable law, (Aii) the Company's Board of Directors determines in good faith, after consultation with receiving the written advice of its outside legal and financial advisors, that such Takeover Proposal is, or unsolicited proposal is financially superior to the transaction contemplated hereby and the party making the proposal has demonstrated that the funds necessary for its proposal are reasonably likely to result in, be available (a "Superior Proposal (as defined in Section 1(c)Proposal"), and (Biii) after consultation with its outside legal advisorprior to furnishing such information to, that failure to do so is reasonably likely to result in a breach of the Board’s fiduciary obligations under applicable lawor entering into discussions or negotiations with, such person or entity, the Company may (x) furnish information with respect provides written notice to Parent to the Company to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person making or entity and receives from such proposal (and its representatives) pursuant to a person or entity an executed confidentiality agreement containing terms no less favorable in thereasonably customary form. The Company shall notify Parent orally and in writing of any inquiries,

No Inconsistent Activities. (a) The Company hereby agrees that, for a period of forty five (45) days from the date hereof (the “Applicable Period”), it shall will not, nor shall and it authorize or permit any will cause its subsidiaries and each officer, director or employee of, of or any investment banker, attorney attorney, accountant or other advisor or representative of, the Company or any of its subsidiaries not to, directly or indirectly, (i) solicit, initiate or encourageknowingly encourage the submission of any Acquisition Proposal (defined below), participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, the Company or any of its subsidiaries, or take any other action designed to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes a Takeover Proposal (as defined below)constitutes, or (ii) participate in may reasonably be expected to lead to, any negotiations Acquisition Proposal, or discussions regarding enter into any Takeover Proposal or furnish to any person any nonpublic information agreement with respect to a Takeover an Acquisition Proposal, or (iii) approve or endorse or recommend any Takeover Proposal, or (iv) enter into any letter of intent or similar document or any contract, agreement or commitment accepting any Takeover Proposal or relating to any Takeover Proposal (other than a confidentiality agreement entered into with a party making a Takeover Proposal contemplated by clause (x) of this Section 1(a)); provided, however, that if, at any time during the term of this Agreement, the Company receives a bona fide Takeover Proposal that did not result from a breach of nothing contained in this Section 1, and 4.2(a) shall prohibit the Board of Directors of the Company from furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (A) the “Board”) Board of Directors of the Company, after consultation with independent legal counsel, determines in good faithfaith that such action is necessary for such Board to comply with its fiduciary duties to the Company's shareholders under applicable Law, (AB) after consultation with its outside legal and financial advisors, the Board of Directors of the Company determines in good faith that such Takeover Proposal isAcquisition Proposal, or if accepted, is reasonably likely to be consummated and would, if consummated, result inin a transaction materially more favorable to the Company's shareholders than the Arrangement (any such materially more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (C) prior to accepting, approving, recommending or entering into an agreement relating to a Superior Proposal, the Company (i) provides five (5) Business Days prior written notice to Parent to the effect that it is proposing to take such action, and (ii) in the event that Parent in its sole discretion offers to amend this Agreement to provide for terms substantially similar to those of the Superior Proposal, negotiates in good faith with Parent with respect to such offer, and (D) prior to furnishing information, or entering into discussions or negotiations with such person, the Company receives from such person an executed confidentiality agreement in reasonably customary form and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement (defined in Section 5.2 below). The Company shall notify Parent of any Acquisition Proposal or request for nonpublic information by any person who is considering making an Acquisition Proposal (including all material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a current basis of the status of any inquiries, discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give Parent a copy of any information delivered to such person which has not previously been reviewed by Parent. Parent acknowledges and agrees that any such information provided to Parent shall be subject to the terms of the Confidentiality Agreement. Immediately after the execution and delivery of this Agreement, the Company will, and will cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. (b) The Board of Directors of the Company will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its recommendation that shareholders of the Company vote in favor of the Arrangement unless (i) the Company has fully complied with the terms of Section 5.1(d), (ii) a Superior Proposal is pending at the time the Board of Directors of the Company determines to take any such action, (as defined in Section 1(c)), and (Biii) the Board of Directors of the Company after consultation with its outside independent legal advisorcounsel, determines in good faith that failure such action is necessary for such Board to do so is reasonably likely comply with the fiduciary duties to result in a breach of the Board’s fiduciary obligations Company's shareholders under applicable law, Law and (iv) the Company may shall have delivered to Parent a prior written notice advising Parent that it intends to take such action and describing its reasons for taking such action (xsuch notice to be delivered not less than five Business Days prior to the time such action is taken). (c) furnish information with respect to Nothing in this Section 4.2 shall (i) permit the Company to terminate this Agreement (except in accordance with Article VII hereof) or (ii) affect any other obligations of the person making such Company under this Agreement. (d) For purposes of this Agreement, "Acquisition Proposal" means an inquiry, offer or proposal (whether or not conditional) regarding any of the following (other than the transactions contemplated by this Agreement) involving the Company or any of its subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of a material portion of the assets of the Company and its representativessubsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) pursuant any tender offer or exchange offer for 20 percent or more of the outstanding Company Common Shares or the filing of a registration statement or prospectus in connection therewith; or (iv) any public announcement of a proposal, plan or intention to a confidentiality do any of the foregoing or any agreement containing terms no less favorable to engage in theany of the foregoing.