Common use of No Participation in a Group or Solicitation of Proxies Clause in Contracts

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the Investor Group agrees that, prior to the fifth anniversary of the Closing, it will not, without the prior approval of a majority of the Independent Directors then in office, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Person; (b) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Commission) to vote any voting securities of the Company or any subsidiary thereof; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets, or make any public announcement with respect to such a proposal or offer; (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group with any third party (other than any person that would be a Permitted Transferee), in connection with any of the foregoing; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); provided, however, that none of the foregoing (i) shall prevent, restrict, Encumber or in any way limit the exercise of the fiduciary rights and obligations of any Investor Designated Director as a director or prevent, restrict, Encumber or in any way limit the ability of any Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their capacity as directors; (ii) shall prevent any member of the Investor Group from Selling any Covered Securities held by it or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) shall prohibit any member of the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any Investor Designated Director or the Investor Group under applicable Law or Nasdaq Regulation.

No Participation in a Group or Solicitation of Proxies. Except Subject to the receipt of the Stockholder Approval, from the date the Investor beneficially acquires thirty-five percent (35%) of the issued and outstanding shares of Common Stock of the Company, except for actions permitted by, or taken in compliance with, Sections 4.01, 4.01 or 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the Investor Group agrees that, prior to the fifth second (2nd) anniversary of the Closingreceipt of the Stockholder Approval, it will not, without the prior approval of a majority of the Independent Directors then in officeBoard, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereofCompany, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Personcontrolling person; (b) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the CommissionSEC) to vote any voting securities of the Company or any subsidiary thereofCompany; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their its securities or assets, or make any public announcement with respect to such a proposal or offer;; or (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group with any third party (other than any person that would be a Permitted Transferee), in connection with any of the foregoing; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); . provided, however, that none of the foregoing (i) shall prevent, restrict, Encumber encumber or in any way limit the exercise of the fiduciary rights and obligations of any the Investor Designated Director as a director or prevent, restrict, Encumber encumber or in any way limit the ability of any the Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their his or her capacity as directorsa director; (ii) shall prevent any member of the Investor Group from Selling any Covered Securities held by it or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) shall prohibit any member of the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any the Investor Designated Director or the Investor Group under applicable Law or Nasdaq Exchange Regulation.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the The Investor Group agrees that, prior to the fifth second (2nd) anniversary of the Closingdate of this Agreement, it will not, without the prior approval of a majority of the Independent Directors then in officeBoard, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereofCompany, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Personcontrolling person, other than as contemplated by the Securities Purchase Agreement; (b) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the CommissionSEC) to vote any voting securities of the Company or any subsidiary thereofCompany; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their its securities or assets, or make any public announcement with respect to such a proposal or offer;; or (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group with any third party (other than any person that would be a Permitted Transferee), in connection with any of the foregoing; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); . provided, however, that none of the foregoing (i) shall prevent, restrict, Encumber encumber or in any way limit the exercise of the fiduciary rights and obligations of any the Investor Designated Director Directors as a director or prevent, restrict, Encumber encumber or in any way limit the ability of any the Investor Designated Director Directors to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their his or her capacity as directorsa director; (ii) shall prevent any member of the Investor Group from Selling making a Sale of any Covered Securities (as defined below) held by it or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) shall prohibit any member of the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any the Investor Designated Director or the Investor Group under applicable Law or Nasdaq Exchange Regulation.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the Investor Yellowstone Group agrees that, prior to the fifth anniversary of the Closing, it will not, without the prior approval of a majority of the Independent Directors then in office, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Person; (b) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Commission) to vote any voting securities of the Company or any subsidiary thereof; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets, or make any public announcement with respect to such a proposal or offer; (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group with any third party (other than any person that would be a Permitted Transferee), in connection with any of the foregoing; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); provided, however, that none of the foregoing (i) shall prevent, restrict, Encumber or in any way limit the exercise of the fiduciary rights and obligations of any Investor Designated Director as a director or prevent, restrict, Encumber or in any way limit the ability of any Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their capacity as directors; (ii) shall prevent any member of the Investor Yellowstone Group from Selling any Covered Securities held by it or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Yellowstone Group or any affiliate thereof; (iv) shall prohibit any member of the Investor Yellowstone Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any Investor Designated Director or the Investor Yellowstone Group under applicable Law or Nasdaq Regulation.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 Section 5.01 and its exercise of rights and obligations pursuant to the provisions of this AgreementAgreement or the Convertible Preferred Articles Supplementary, the Investor Group Stockholder agrees that, prior to the fifth anniversary earlier of (x) the Standstill Expiration Date and (y) the date Tengelmann directly or indirectly engages in any of the Closingactivities prohibited by clauses (a) through (d) below (for purposes of this clause (y), any references to “Stockholder” shall be deemed to refer to “Tengelmann” and any references to this “Agreement” shall be deemed to refer to the “Amended and Restated Tengelmann Stockholder Agreement”), it will not, nor shall it permit its controlled or controlling Affiliates or General or any controlled Affiliate of Xxxxxx X. Xxxxxx to, without the prior approval of a majority of the Independent Directors then in officeBoard, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities Equity Securities in excess of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Personthat allowed under Section 5.01; (b) make publicly announce any proposal to the Company or all its stockholders for any extraordinary corporate transaction (including any Business Combination or dissolution) involving the Company or any Subsidiary; (c) make, or in any way participate, directly or indirectly, in in, any “solicitation” of “proxies” to vote or in any “election contest” (as such terms are used in the proxy rules of the Commission) Exchange Act), or agree or announce an intention to vote with any Person undertaking a “solicitation”, or seek to advise or influence any Person or 1 3D Group with respect to the voting securities of, any Voting Stock of the Company or any subsidiary Subsidiary thereof; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets, or make any public announcement with respect proposal to such a proposal or offerbe voted upon by holders of Voting Stock; (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join join, encourage the formation of or in any way engage in discussions relating to the formation of, or in any way participate in, a group with any third party 1 3D Group (other than any person that would be a Permitted Transferee), in connection with any other Stockholder or its Permitted Transferees) with respect to any Voting Stock of the foregoingCompany or any Subsidiary thereof, including pursuant to any voting agreement or trust; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph Section 5.02 (including this sentenceclause (e)); provided, however, that none Stockholder shall be permitted to make confidential requests to the Board of Directors to amend or waive any of the foregoing limitations set forth in this Section 5.02, which the Other Directors, acting by majority, may accept or reject in their sole discretion; provided, further that (A) any such request shall be made in a manner that shall not require the public disclosure of such request by Stockholder or the Company and (B) any such request shall not be publicly disclosed by Stockholder. For purposes of clarity and notwithstanding the foregoing, nothing in this Article V shall (i) shall preventpermit Stockholder to take any action that would require Stockholder, restrictthe Company or any Subsidiary thereof, Encumber or any Person required under Section 13(d) of the Exchange Act to file a statement on Schedule 1 3D with the SEC, to make any public announcement or otherwise be required make any public disclosure as a result of any such action by Stockholder, (ii) prohibit or in any way limit the exercise of the fiduciary rights and obligations of any Investor Designated Stockholder Director as a director or prevent, restrict, Encumber or from fully participating in any way limit the ability of any Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting meetings of the Board of Directors in his or any committee thereof, or otherwise to act in their her capacity as directors; a Director, (iiiii) shall prevent restrict Stockholder’s ability to sell or Transfer any member of the Investor Group from Selling any Covered Equity Securities held by it Stockholder in a manner permitted by this Agreement, and actions related thereto shall not be a breach of this Article V, or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) permit Stockholder to disclose confidential business information about the Company in violation of Section 8.16. Further, Sections 5.01 and 5.02 shall prohibit any member of automatically terminate upon the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any Investor Designated Director or the Investor Group under applicable Law or Nasdaq RegulationStandstill Expiration Date.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the Investor Group The Stockholder agrees that, prior to the fifth later of the two year anniversary of the Closingdate hereof or such time the Stockholder no longer Beneficially Own 4% or more of the then-outstanding shares of Common Stock (the “Standstill Period”), it will not, and it will cause its Affiliates not to, without the prior approval of a majority written consent of the Independent Directors then in officeCompany or its Board, directly or indirectly: (a) acquire, offer to acquire, acquire or agree to acquire, directly or indirectly, by purchase or otherwise, any equity or equity-linked securities of the Company or debt securities convertible or exchangeable into equity securities of the Company or direct or indirect rights to acquire any equity or equity-linked securities of the Company or any subsidiary thereof, or material amount of any successor to or person in control of the Company, or any assets of the Company (other than pursuant to ordinary course commercial transactions) or any division thereof or of any such successor or Controlling Personthereof; (b) seek or propose to influence or control the management or policies of the Board or the Company or any Subsidiary thereof including through bylaw amendments or seeking to elect a representative to the Board or seek removal of any members of the Board, or make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Commission) to vote any voting securities of the Company Company, or seek to advise or influence any subsidiary thereof; provided, however, that person or entity with respect to the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from voting of any voting securities of the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provisionCompany; (c) make any public announcement with respect to, or publicly submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary Subsidiary thereof or any of their securities or material assets, or make any public announcement with respect to such a proposal or offer; (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) Third Party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group Group, with any third party (other than any person that would be a Permitted Transferee), the purposes of engaging in connection with any of the foregoing; or (e) publicly request that the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); provided, provided however, that none of the foregoing (i) shall prevent, restrict, Encumber or in any way limit the exercise of the fiduciary rights and obligations of any Investor Designated Director as a director or prevent, restrict, Encumber or in any way limit the ability of any Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their capacity as directors; (iix) shall prevent any member of the Investor Group Stockholder from Selling any Covered Securities held by it or voting its Common Stock; Stock with respect to any matter as to which a stockholder vote is solicited or (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (ivy) shall prohibit any member of the Investor Group Stockholder from soliciting, offering, seeking to effect or and negotiating with any person Person with respect to transfers of Covered Securities otherwise Common Stock permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any Investor Designated Director or the Investor Group under applicable Law or Nasdaq Regulation2.01.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 Section 5.01 and its exercise of rights and obligations pursuant to the provisions of this AgreementAgreement or the Convertible Preferred Articles Supplementary, the Investor Group Stockholder agrees that, prior to the fifth anniversary earlier of (x) the Standstill Expiration Date and (y) the date Tengelmann directly or indirectly engages in any of the Closingactivities prohibited by clauses (a) through (d) below (for purposes of this clause (y), any references to “Stockholder” shall be deemed to refer to “Tengelmann” and any references to this “Agreement” shall be deemed to refer to the “Amended and Restated Tengelmann Stockholder Agreement”), it will not, nor shall it permit its controlled or controlling Affiliates or General or any controlled Affiliate of Xxxxxx X. Xxxxxx to, without the prior approval of a majority of the Independent Directors then in officeBoard, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities Equity Securities in excess of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Personthat allowed under Section 5.01; (b) make publicly announce any proposal to the Company or all its stockholders for any extraordinary corporate transaction (including any Business Combination or dissolution) involving the Company or any Subsidiary; (c) make, or in any way participate, directly or indirectly, in in, any “solicitation” of “proxies” to vote or in any “election contest” (as such terms are used in the proxy rules of the Commission) Exchange Act), or agree or announce an intention to vote with any Person undertaking a “solicitation”, or seek to advise or influence any Person or 13D Group with respect to the voting securities of, any Voting Stock of the Company or any subsidiary Subsidiary thereof; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets, or make any public announcement with respect proposal to such a proposal or offerbe voted upon by holders of Voting Stock; (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join join, encourage the formation of or in any way engage in discussions relating to the formation of, or in any way participate in, a group with any third party 13D Group (other than any person that would be a Permitted Transferee), in connection with any other Stockholder or its Permitted Transferees) with respect to any Voting Stock of the foregoingCompany or any Subsidiary thereof, including pursuant to any voting agreement or trust; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph Section 5.02 (including this sentenceclause (e)); provided, however, that none Stockholder shall be permitted to make confidential requests to the Board of Directors to amend or waive any of the foregoing limitations set forth in this Section 5.02, which the Other Directors, acting by majority, may accept or reject in their sole discretion; provided, further that (A) any such request shall be made in a manner that shall not require the public disclosure of such request by Stockholder or the Company and (B) any such request shall not be publicly disclosed by Stockholder. For purposes of clarity and notwithstanding the foregoing, nothing in this Article V shall (i) shall preventpermit Stockholder to take any action that would require Stockholder, restrictthe Company or any Subsidiary thereof, Encumber or any Person required under Section 13(d) of the Exchange Act to file a statement on Schedule 13D with the SEC, to make any public announcement or otherwise be required make any public disclosure as a result of any such action by Stockholder, (ii) prohibit or in any way limit the exercise of the fiduciary rights and obligations of any Investor Designated Stockholder Director as a director or prevent, restrict, Encumber or from fully participating in any way limit the ability of any Investor Designated Director to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting meetings of the Board of Directors in his or any committee thereof, or otherwise to act in their her capacity as directors; a Director, (iiiii) shall prevent restrict Stockholder’s ability to sell or Transfer any member of the Investor Group from Selling any Covered Equity Securities held by it Stockholder in a manner permitted by this Agreement, and actions related thereto shall not be a breach of this Article V, or voting its Common Stock; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) permit Stockholder to disclose confidential business information about the Company in violation of Section 8.16. Further, Sections 5.01 and 5.02 shall prohibit any member of automatically terminate upon the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 or (v) restrict any disclosure or statements required to be made by any Investor Designated Director or the Investor Group under applicable Law or Nasdaq RegulationStandstill Expiration Date.

No Participation in a Group or Solicitation of Proxies. Except for actions permitted by, or taken in compliance with, Sections 4.01, 4.03 and 4.04 and its exercise of rights pursuant to the provisions of this Agreement, the The Investor Group agrees that, prior to the fifth anniversary of the Closing, it will not, without the prior approval of a majority of the Independent Directors then in officeBoard, directly or indirectly: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereofCompany, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or Controlling Personcontrolling person, other than as contemplated by the Securities Purchase Agreement; (b) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the CommissionSEC) to vote any voting securities of the Company or any subsidiary thereofCompany; provided, however, that the prohibition in this Section 4.02(b) shall not apply to solicitations exempted from the proxy solicitation rules by Rule 14a-2 under the Exchange Act or any successor provision; (c) submit to the Board a written proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their its securities or assets, or make any public announcement with respect to such a proposal or offer;; or (d) enter into any discussions, negotiations, arrangements or understandings with any third party (other than any person that would be a Permitted Transferee) with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a group with any third party (other than any person that would be a Permitted Transferee), in connection with any of the foregoing; or (e) request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); . provided, however, that none of the foregoing (i) shall prevent, restrict, Encumber encumber or in any way limit the exercise of the fiduciary rights and obligations of any the Investor Designated Director Directors as a director or prevent, restrict, Encumber encumber or in any way limit the ability of any the Investor Designated Director Directors to vote on matters, influence officers, employees, agents, management or the other directors of the Company, take any action or make any statement at any meeting of the Board or any committee thereof, or otherwise to act in their his or her capacity as directorsa director; (ii) shall prevent any member of the Investor Group from Selling making a Sale of any Covered Securities (as defined below) held by it or voting its Common StockStock otherwise permitted by Article 5 below; (iii) shall apply to or restrict any discussions or other communications between or among directors, members, officers, employees or agents of any member of the Investor Group or any affiliate thereof; (iv) shall prohibit any member of the Investor Group from soliciting, offering, seeking to effect or negotiating with any person with respect to transfers of Covered Securities otherwise permitted by Section 5.01 Article 5 below or (v) restrict any disclosure or statements required to be made by any the Investor Designated Director or the Investor Group under applicable Law or Nasdaq Exchange Regulation.