Common use of No Solicitation by Target Clause in Contracts

No Solicitation by Target. (a) Target agrees that it and its Subsidiaries will not (and Target will not permit its or its Subsidiaries’ officers, directors, employees, agents or representatives, including any investment banker, attorney or accountant retained by Target or any of its Subsidiaries, to): (i) solicit, initiate or knowingly facilitate or encourage the making by any Person (other than Acquiror and its Affiliates) of any inquiry, proposal or offer (including any proposal or offer to Target’s Stockholders) that constitutes or could reasonably be expected to lead to, a proposal for any tender offer, merger, consolidation, business combination or similar transaction involving Target or any of its Subsidiaries and a third party, or any acquisition by a third party of any capital stock of Target (other than upon the exercise of the Target Employee Stock Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of Target or any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole), or any combination of the foregoing, in a single transaction or a series of related transactions (in each case, an “Acquisition Proposal”); (ii) participate or engage in discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal), or furnish or disclose to any Person any information with respect to or in furtherance of any Acquisition Proposal; (iii) grant any waiver or release under any confidentiality agreement, standstill agreement or similar agreement with respect to Target or any of its Subsidiaries; or (iv) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing actions). (b) Nothing contained in the foregoing Section 6.3(a) shall prevent Target, at any time prior to receipt of Stockholders’ Approval with respect to the Merger, from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (ii) from providing information (pursuant to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all of the outstanding shares of capital stock of Target or all or substantially all of the assets of Target if, with respect to such actions, (x) in the good faith judgment of the Board of Directors of Target, taking into account, among other things, the likelihood of consummation and after consultation with its financial advisors, such Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of Target Common Stock from a financial point of view than the Merger (a “Superior Proposal”) and (y) the Board of Directors of Target, after consultation with its outside legal counsel, determines in good faith that such actions are required by its fiduciary obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal, other than a confidentiality agreement permitted by Section 6.3(a)(iv). (e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders’ Approval with respect to the Merger, the Board of Directors of Target determines, in its good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration of the Negotiation Period and prior to such termination, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications to the terms of this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges its obligations under Section 8.3(b).

No Solicitation by Target. (a) Target agrees that shall not, nor shall it and permit any of its Subsidiaries will not (and Target will not subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ officers, directors, employees, agents officers or representatives, including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by Target it or any of its Subsidiariessubsidiaries to, to): directly or indirectly through another person, (i) solicit, initiate or knowingly facilitate encourage (including by way of furnishing information), or encourage take any other action designed to facilitate, any inquiries or the making by of any Person proposal which constitutes any Target Takeover Proposal (other than as defined below) or (ii) participate in any discussions or negotiations regarding any Target Takeover Proposal; provided, however, that if, at any time prior to the publicly announced date of the Target Meeting (the "Target Applicable Period"), the Board of Directors of Target determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Target's stockholders under applicable law, Target may, in response to a Target Superior Proposal (as defined in Section 6.8(b)) which did not result from a breach of this Section 6.8(a), and subject to providing prior written notice of its decision to take such action to Acquiror (the "Target Notice") and compliance with Section 6.8(c), for a period of ten business days following delivery of the Target Notice (x) furnish information with respect to Target and its Affiliatessubsidiaries to any person making a Target Superior Proposal pursuant to a customary confidentiality agreement (as determined by Target after consultation with its outside counsel) and (y) participate in discussions or negotiations regarding such Target Superior Proposal. For purposes of this Agreement, "Target Takeover Proposal" means any inquiry, proposal or offer (including from any proposal person relating to any direct or offer to Target’s Stockholders) indirect acquisition or purchase of a business that constitutes 15% or could reasonably be expected to lead tomore of the net revenues, net income or the assets of Target and its subsidiaries, taken as a proposal for whole, or 15% or more of any class of equity securities of Target or any of its subsidiaries, any tender offeroffer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of equity securities of Target or any of its subsidiaries, or any merger, consolidation, business combination combination, recapitalization, liquidation, dissolution or similar transaction involving Target or any of its Subsidiaries and a third party, or any acquisition by a third party of any capital stock of Target (other than upon the exercise of the Target Employee Stock Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of Target or any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole), or any combination of the foregoing, in a single transaction or a series of related transactions (in each case, an “Acquisition Proposal”); (ii) participate or engage in discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal), or furnish or disclose to any Person any information with respect to or in furtherance of any Acquisition Proposal; (iii) grant any waiver or release under any confidentiality agreement, standstill agreement or similar agreement with respect to Target or any of its Subsidiaries; or (iv) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing actions). (b) Nothing contained in the foregoing Section 6.3(a) shall prevent Target, at any time prior to receipt of Stockholders’ Approval with respect to the Merger, from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (ii) from providing information (pursuant to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all of the outstanding shares of capital stock of Target or all or substantially all of the assets of Target if, with respect to such actions, (x) in the good faith judgment of the Board of Directors of Target, taking into account, among other things, the likelihood of consummation and after consultation with its financial advisors, such Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of Target Common Stock from a financial point of view than the Merger (a “Superior Proposal”) and (y) the Board of Directors of Target, after consultation with its outside legal counsel, determines in good faith that such actions are required by its fiduciary obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposalsubsidiaries, other than a confidentiality agreement permitted by Section 6.3(a)(iv). (e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders’ Approval with respect to the Merger, the Board of Directors of Target determines, in its good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration of the Negotiation Period and prior to such termination, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications to the terms of by this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges its obligations under Section 8.3(b)Agreement.

No Solicitation by Target. (a) Target agrees that it shall not directly or indirectly, and its Subsidiaries will shall not (and Target will not authorize or permit its or its Subsidiaries’ officers, directors, employees, agents or representatives, including any investment banker, attorney or accountant retained by Target or any of its Subsidiaries, representatives directly or indirectly to):: (i) solicit, initiate initiate, encourage, induce or knowingly facilitate the making, submission or encourage the making by any Person (other than Acquiror and its Affiliates) announcement of any inquiry, proposal Target Acquisition Proposal or offer (including take any proposal or offer to Target’s Stockholders) action that constitutes or could reasonably be expected to lead to, to a proposal for any tender offer, merger, consolidation, business combination or similar transaction involving Target or any of its Subsidiaries and a third party, or any acquisition by a third party of any capital stock of Target (other than upon the exercise of the Target Employee Stock Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of Target or any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole), or any combination of the foregoing, in a single transaction or a series of related transactions (in each case, an “Acquisition Proposal”);, (ii) participate furnish any information regarding Target to any Person in connection with or in response to a Target Acquisition Proposal or an inquiry or indication of interest that could lead to a Target Acquisition Proposal, (iii) engage in discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore Person with respect to any Target Acquisition Proposal), (iv) approve, endorse or recommend any Target Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract contemplating or otherwise relating to any Target Acquisition Transaction; provided, however, that this Section 9.01(a) shall not prohibit: (A) Target, or furnish or disclose Target's Board of Directors, in response to any Person any information with respect to or in furtherance of any Target Acquisition Proposal, from requesting clarifications from any third party which makes a Target Acquisition Proposal, if such action is taken solely for the purpose of obtaining information reasonably necessary for the Target to ascertain whether such Target Acquisition Proposal is a Target Superior Offer; (iiiB) grant Target, or the Board of Directors of Target from furnishing nonpublic information regarding Target to, or entering into discussions or negotiations with, any waiver Person in response to a Target Superior Offer that is submitted to Target by such Person (and not withdrawn) if: (1) neither Target nor any of its representatives shall have violated any of the restrictions set forth in Section 9.01 (b), (2) the Board of Directors of Target determines, in good faith, based on the advice of its outside legal counsel, that failing to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Board of Directors of Target to comply with its fiduciary obligations to Target's stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or release under any entering into discussions or negotiations with, such Person, Target gives Parent written notice of the identity of such Person and of Target's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person, and Target receives from such Person an executed confidentiality agreement, and standstill agreement or similar agreement with respect containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to Target such Person or any of its Subsidiariessuch Person's representatives and containing customary restrictions on the purchase of Target stock by or on behalf of Target on terms no less favorable to Target than the Nondisclosure Agreement, and (4) prior to furnishing any such nonpublic information to such Person, Target furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by Target to Parent); or (ivC) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing actions). (b) Nothing contained in the foregoing Section 6.3(a) shall prevent Target, at any time prior to receipt of Stockholders’ Approval with respect to the Merger, from (i) complying with Rule 14D-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an a Target Acquisition Proposal and (ii) or from providing information (pursuant making any required disclosure to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all of the outstanding shares of capital stock of Target or all or substantially all of the assets of Target Target's shareholders if, with respect to such actions, (x) in the reasonable good faith judgment of the Target's Board of Directors of Target, taking into account, among other things, the likelihood of consummation and after consultation with its financial advisors, such Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of Target Common Stock from a financial point of view than the Merger (a “Superior Proposal”) and (y) the Board of Directors of TargetDirectors, after consultation with its outside legal counsel, determines in good faith that such actions are required by failure so to disclose would be inconsistent with its fiduciary disclosure obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal, other than a confidentiality agreement permitted by Section 6.3(a)(iv). (e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders’ Approval with respect to the Merger, the Board of Directors of Target determines, in its good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration of the Negotiation Period and prior to such termination, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications to the terms of this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges its obligations under Section 8.3(b)...

No Solicitation by Target. (a) Target agrees that shall not, nor shall it and permit any of its Subsidiaries will not (and Target will not subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ officers, directors, employees, agents officers or representatives, including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by Target it or any of its Subsidiariessubsidiaries to, to): directly or indirectly through another person, (i) solicit, initiate or knowingly facilitate encourage (including by way of furnishing information), or encourage take any other action to facilitate, any inquiries or the making by any Person (other than Acquiror and its Affiliates) of any inquiryproposal that constitutes, proposal or offer (including any proposal or offer to Target’s Stockholders) that constitutes or could may reasonably be expected to lead to, a proposal for any tender offer, merger, consolidation, business combination Takeover Proposal or similar transaction involving Target or any of its Subsidiaries and a third party, or any acquisition by a third party of any capital stock of Target (other than upon the exercise of the Target Employee Stock Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of Target or any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole), or any combination of the foregoing, in a single transaction or a series of related transactions (in each case, an “Acquisition Proposal”); (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal)regarding, or furnish or disclose to any Person person any information with respect to or in furtherance of to, any Acquisition Takeover Proposal; (iii) grant any waiver or release under any confidentiality agreement; PROVIDED, standstill agreement or similar agreement with respect to Target or any of its Subsidiaries; or (iv) execute or enter into any agreementHOWEVER, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing actions). (b) Nothing contained in the foregoing Section 6.3(a) shall prevent Targetthat if, at any time prior to receipt acceptance for payment of Stockholders’ Approval with respect shares of Target Common Stock pursuant to and subject to the Merger, from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (ii) from providing information (pursuant to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all conditions of the outstanding shares of capital stock of Target or all or substantially all Offer (the "Specified Date"), a majority of the assets of Target if, with respect to such actions, (x) in the good faith judgment members of the Board of Directors of Target, taking into account, among other things, the likelihood of consummation and Target determines in good faith (after consultation with its financial advisorsoutside counsel) that failure to do so would be reasonably likely to result in a breach of the fiduciary duties of such Board to Target's stockholders under applicable law, such Acquisition Target may, in response to a Takeover Proposal that a majority of the members of the Board of Directors of Target determines in good faith is or is reasonably likely to result in a transaction more favorable to the holders Superior Proposal and which Takeover Proposal was not solicited by it in breach of Target Common Stock this Section 4.02(a) or which did not otherwise result from a financial point breach of view this Section 4.02(a), and subject to providing prior written notice of its decision to take such action to Parent and compliance with Section 4.02(c), (x) furnish information with respect to Target and its subsidiaries to any person making such Takeover Proposal pursuant to a customary confidentiality agreement (PROVIDED that if such confidentiality agreement contains provisions that are less restrictive than the Merger comparable provision in, or omits restrictive provisions, contained in the Confidentiality Agreement dated as of January 17, 2001 between Parent and Target (a “Superior Proposal”the "Confidentiality Agreement"), then the Confidentiality Agreement shall be deemed amended to contain only such less restrictive provisions or to omit such restrictive provisions as applicable) and (y) the Board of Directors of Target, after consultation with its outside legal counsel, determines participate in good faith that such actions are required by its fiduciary obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal, other than a confidentiality agreement permitted by Section 6.3(a)(iv). (e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders’ Approval with respect to the Merger, the Board of Directors of Target determines, in its good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration of the Negotiation Period and prior to such termination, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications to the terms of this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges its obligations under Section 8.3(b)Takeover Proposal.

No Solicitation by Target. (a) Target agrees that shall not, nor shall it and permit any of its Subsidiaries will not (and Target will not subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ officers, directors, employees, agents officers or representatives, including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by Target it or any of its Subsidiariessubsidiaries to, to): directly or indirectly through another person, (i) solicit, initiate or knowingly facilitate encourage (including by way of furnishing information), or encourage take any other action to facilitate, any inquiries or the making by any Person (other than Acquiror and its Affiliates) of any inquiryproposal that constitutes, proposal or offer (including any proposal or offer to Target’s Stockholders) that constitutes or could may reasonably be expected to lead to, a proposal for any tender offer, merger, consolidation, business combination Takeover Proposal or similar transaction involving Target or any of its Subsidiaries and a third party, or any acquisition by a third party of any capital stock of Target (other than upon the exercise of the Target Employee Stock Options that are outstanding on the date hereof in accordance with their terms) or any business or assets of Target or any of its Subsidiaries (other than acquisitions of a business or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole), or any combination of the foregoing, in a single transaction or a series of related transactions (in each case, an “Acquisition Proposal”); (ii) enter into, continue or otherwise participate or engage in any discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal)regarding, or furnish or disclose to any Person person any information with respect to or in furtherance of to, any Acquisition Takeover Proposal; (iii) grant any waiver or release under any confidentiality agreement; provided, standstill agreement or similar agreement with respect to Target or any of its Subsidiaries; or (iv) execute or enter into any agreementhowever, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, understanding or arrangement relating to any Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing actions). (b) Nothing contained in the foregoing Section 6.3(a) shall prevent Targetthat if, at any time prior to receipt acceptance for payment of Stockholders’ Approval with respect shares of Target Common Stock pursuant to and subject to the Merger, from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (ii) from providing information (pursuant to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all conditions of the outstanding shares of capital stock of Target or all or substantially all Offer (the "Specified Date"), a majority of the assets of Target if, with respect to such actions, (x) in the good faith judgment members of the Board of Directors of Target, taking into account, among other things, the likelihood of consummation and Target determines in good faith (after consultation with its financial advisorsoutside counsel) that failure to do so would be reasonably likely to result in a breach of the fiduciary duties of such Board to Target's stockholders under applicable law, such Acquisition Target may, in response to a Takeover Proposal that a majority of the members of the Board of Directors of Target determines in good faith is or is reasonably likely to result in a transaction more favorable to the holders Superior Proposal and which Takeover Proposal was not solicited by it in breach of Target Common Stock this Section 4.02(a) or which did not otherwise result from a financial point breach of view this Section 4.02(a), and subject to providing prior written notice of its decision to take such action to Parent and compliance with Section 4.02(c), (x) furnish information with respect to Target and its subsidiaries to any person making such Takeover Proposal pursuant to a customary confidentiality agreement (provided that if such confidentiality agreement contains provisions that are less restrictive than the Merger comparable provision in, or omits restrictive provisions, contained in the Confidentiality Agreement dated as of January 17, 2001 between Parent and Target (a “Superior Proposal”the "Confidentiality Agreement"), then the Confidentiality Agreement shall be deemed amended to contain only such less restrictive provisions or to omit such restrictive provisions as applicable) and (y) the Board of Directors of Target, after consultation with its outside legal counsel, determines participate in good faith that such actions are required by its fiduciary obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target or any of its officers, directors, employees, agents or representatives. The notice shall be in writing and state the identity of the person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal, other than a confidentiality agreement permitted by Section 6.3(a)(iv). (e) Notwithstanding any other provision of this Agreement, if, prior to obtaining Stockholders’ Approval with respect to the Merger, the Board of Directors of Target determines, in its good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration of the Negotiation Period and prior to such termination, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications to the terms of this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges its obligations under Section 8.3(b)Takeover Proposal.

No Solicitation by Target. (a) Target agrees that it During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its Subsidiaries will terms or the Effective Time, TARGET shall not, and shall not (and Target will not authorize or permit any of its subsidiaries or any of its or its Subsidiaries’ their officers, directors, employees, representatives or agents or representatives, including any investment banker, attorney financial advisor, attorney, accountant or accountant other advisor or representative retained by Target it or any of its Subsidiariessubsidiaries, to): to directly or indirectly (i) solicit, encourage or initiate the submission of any proposal that constitutes, or may reasonably be expected to lead to an Acquisition Proposal (as defined below), (ii) negotiate, approve or recommend any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (iii) furnish to any person any information with respect to, or take any other action knowingly to facilitate or encourage the making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal; provided, however, that if at any time after the date -------- ------- hereof and ending on the date the Required Stockholder Approval is obtained (the "Applicable Period"), to the extent required by any Person (other than Acquiror the fiduciary obligations of the ----------------- TARGET Board, determined in good faith and after consultation with outside counsel, TARGET and its Affiliatesrepresentatives may in response to a Superior Proposal (as defined below) which did not otherwise result from a breach of this Section ------- 4.03(a), and subject to TARGET providing prior written notice to PARENT of its ------- decision to take such action and complying with Section 4.03(d), (A) furnish --------------- information with respect to TARGET to the person making such Superior Proposal pursuant to a customary confidentiality agreement and (B) participate in discussions with such person regarding such Superior Proposal. (b) For purposes of this Agreement, the term "Acquisition Proposal" means -------------------- any inquiry, proposal or offer (including other than this Agreement or any other inquiry, proposal or offer made by PARENT or SUB) from any person relating to a merger, consolidation, dissolution, liquidation, joint venture, sale of a substantial portion of assets, recapitalization or other business combination, business alliance or similar transaction involving TARGET or any of its subsidiaries, or the issuance by TARGET, or any of its subsidiaries of 20% or more of any class of equity securities as consideration for the assets or securities of another person, or any proposal or offer to Target’s Stockholders) acquire in any manner, directly or indirectly, 20% or more of the assets of TARGET and its subsidiaries, taken as a whole, or any class of equity securities of TARGET or any of its subsidiaries or any tender offer or exchange offer that constitutes if consummated would result in any person beneficially owning 20% or more of any class of equity securities of TARGET or any of its subsidiaries, or any other transaction the consummation of which would or could reasonably be expected to lead toprevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated hereby; and as used herein, the term "Superior -------- Proposal" means (i) any offer or proposal made by a proposal for any third party to consummate a -------- tender offer, exchange offer, merger, consolidation or similar transaction which would result in such third party owning, directly or indirectly, 50% of the voting interests or equity interests in TARGET then outstanding or 50% or more of the assets of TARGET and its subsidiaries, taken together (including through a merger of such third party and TARGET), or any merger, consolidation, business combination combination, recapitalization, liquidation, dissolution, joint venture, sale of a substantial portion of assets, recapitalization or other business combination, business alliance or similar transaction involving Target TARGET or any of its Subsidiaries and a third party, subsidiaries in which the other party thereto or any acquisition by a third party of any capital stock of Target (other than upon the exercise its stockholders will own 40% or more of the Target Employee Stock Options that are outstanding combined voting power of the parent entity resulting from any such transaction and (ii) otherwise on terms which the TARGET Board determines in its good faith judgment (based on the date hereof in accordance with their termsadvice of a financial advisor of nationally recognized reputation), taking into account the person making the proposal and the legal, financial, regulatory and other aspects of the proposal, (x) or any business or assets would be more favorable than the Merger to TARGET's stockholders, and (y) is reasonably capable of Target or being completed. (c) None of TARGET, any of its Subsidiaries subsidiaries, the TARGET Board or any committee thereof shall (other than acquisitions of a business i) withdraw or assets in the ordinary course of business that constitute less than 10% of the net revenues, net operating income or assets of Target and its Subsidiaries, taken as a whole)modify, or any combination of the foregoingpropose to withdraw or modify, in a single transaction manner adverse to PARENT or a series SUB, the approval or recommendation by the TARGET Board or any committee thereof of related transactions (in each casethis Agreement or the Merger, an “Acquisition Proposal”); (ii) participate approve or engage in discussions or negotiations concerning an Acquisition Proposal (and Target, its Subsidiaries and all such persons shall immediately cease and cause to be terminated any existing discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal)recommend, or furnish propose to approve or disclose to any Person any information with respect to or in furtherance of any Acquisition Proposal; (iii) grant any waiver or release under any confidentiality agreementrecommend, standstill agreement or similar agreement with respect to Target or any of its Subsidiaries; or (iv) execute or enter into any agreement, understanding or arrangement (other than a confidentiality agreement in substantially the same form and on substantially the same terms as the Confidentiality Agreement and which does not prevent Target from complying with its obligations under this Agreement) with respect to any Acquisition Proposal, or (iii) approve or recommend recommend, or propose to approve or recommend recommend, or execute or enter into, any Acquisition Proposal or any letter of intent, agreement in principle, merger agreement, understanding acquisition agreement, option agreement or arrangement other agreement relating to any Acquisition Proposal (each an "Acquisition Agreement") or resolve propose or authorize agree to do --------------------- any of the foregoing. Notwithstanding the foregoing, during the Applicable Period, in response to a Superior Proposal which did not result from a breach of Section 4.03(a), to the extent required by the fiduciary obligations of the --------------- TARGET Board, determined in good faith and after consultation with outside counsel, the TARGET Board may, after complying with Section 4.03(d), (x) modify -------------- or propose to agree modify, in a manner adverse to do any PARENT and SUB, the approval or recommendation of the foregoing actionsMerger or this Agreement by the TARGET Board and/or (y) terminate this Agreement (and concurrently with such termination cause TARGET to enter into any Acquisition Agreement with respect to any Superior Proposal), but in the case of clause (y), only at a time that is during the Applicable Period and is after the fourth business day (or the second calendar day in the case of an amendment to a Superior Proposal) following PARENT's receipt of written notice advising it that the TARGET Board is prepared to accept a Superior Proposal (or any amendment thereto), specifying the material terms and conditions of such Superior Proposal (or any amendment thereto) and identifying the person making such Superior Proposal (or any amendment thereto). (bd) Nothing contained in the foregoing Section 6.3(a) TARGET shall prevent Target, at any time prior to receipt of Stockholders’ Approval with respect to the Merger, from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal and (ii) from providing information (pursuant to a confidentiality agreement permitted by Section 6.3(a)(iv)) to or engaging in any negotiations or discussions with any person or group who has made an unsolicited bona fide Acquisition Proposal with respect to all of the outstanding shares of capital stock of Target or all or substantially all of the assets of Target if, with respect to such actions, (x) in the good faith judgment of the Board of Directors of Target, taking into account, among other things, the likelihood of consummation and after consultation with its financial advisors, such Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of Target Common Stock from a financial point of view than the Merger (a “Superior Proposal”) and (y) the Board of Directors of Target, after consultation with its outside legal counsel, determines in good faith that such actions are required by its fiduciary obligations under applicable law. (c) Target agrees that it will notify Acquiror promptly (and in any event within 24 hours) if notify PARENT after receipt of any proposal Acquisition Proposal or offer any inquiry with respect to or that is reasonably likely to lead to any Acquisition Proposal or any request for information relating to or constituting an Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Target TARGET or any of its officerssubsidiaries in connection with an Acquisition Proposal or for access to the properties, directors, employees, agents books or representativesrecords of TARGET or any of its subsidiaries by any person in connection with an Acquisition Proposal. The notice TARGET shall be in writing and state inform PARENT of the identity of the person or group making any such Acquisition Proposal, request or inquiry or engaging inquiry, and, in such negotiations or discussions and each case, the material terms and conditions of any Acquisition Proposal. Thereafter, Target shall keep Acquiror fully informed on and status and details thereof (including amendments or a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 6.3(b), if Target intends to participate in any such discussions or negotiations or provide any such information to any such third party, Target shall give written notice to Acquiror. (d) Nothing in this Section 6.3 shall permit Target to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, Target shall not enter into any agreement with any person with respect to or that provides for, or in any way facilitates, an Acquisition Proposal, other than a confidentiality agreement permitted by Section 6.3(a)(ivproposed amendment). (e) Notwithstanding TARGET shall immediately cease any existing discussions or negotiations with any parties (other provision of this Agreement, if, prior to obtaining Stockholders’ Approval than with PARENT and SUB) conducted heretofore with respect to any Acquisition Proposal. (f) Nothing contained in this Section 4.03 shall prohibit TARGET from ------------ taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or 14e-2 promulgated under the Merger, the Board of Directors of Target determinesExchange Act or from making any disclosure to TARGET's stockholders if, in its the good faith judgment, that an Acquisition Proposal is a Superior Proposal, the Board of Directors of Target may terminate this Agreement (subject to Target’s obligations under Article 8); provided, that (i) Target provides at least five business days prior written notice to the Parent of its intention to terminate this Agreement in the absence of any further action by Acquiror, (ii) during such five business day period (or longer period if extended by Target and Acquiror, the “Negotiation Period”), Target agrees to negotiate in good faith with Acquiror regarding such changes as Acquiror may propose to the terms of this Agreement, with the intent of enabling Acquiror to agree to a modification of this Agreement so that the transactions contemplated hereby may be consummated; and (iii) after expiration judgment of the Negotiation Period and prior to such terminationTARGET Board, the Board of Directors of Target confirms in writing to Acquiror that (x) it has determined (after consultation with outside legal counsel and an independent financial advisor) that the Acquisition Proposal remains a Superior Proposal taking into account any modifications counsel, failure so to the terms of this Agreement proposed by Acquiror, (y) Target intends to accept such Superior Proposal and (z) Target acknowledges disclose would be inconsistent with its obligations under applicable law; provided, however, that, subject to -------- ------- Section 8.3(b4.03(c), neither --------------- TARGET nor TARGET's Board nor any committee thereof shall withdraw, or propose to withdraw, its position with respect to this Agreement or the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.