Common use of No Solicitation by the Company Clause in Contracts

No Solicitation by the Company. (a) The Company agrees that (i) neither it nor any of its Subsidiaries shall, and it shall not authorize or permit any officers, directors, employees, agents or representatives of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing to, directly or indirectly, solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any action designed to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including any proposal or offer to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the transactions contemplated by this Agreement) involving, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, (B) prior to the Cutoff Date, providing information (pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.

No Solicitation by the Company. (a) The Except as expressly permitted by this Section 4.2, the Company agrees that shall and shall cause each of its Affiliates and its Representatives to: (i) neither it nor immediately cease any of its Subsidiaries shallsolicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and it shall promptly (but in any event within one (1) business day) after the date of this Agreement, if not authorize or permit already done so prior to the date of this Agreement, instruct any officers, directors, employees, agents or representatives of Person who entered into a confidentiality agreement with the Company that has not expired or been terminated in connection with any actual or potential Acquisition Proposal to return or destroy all such information or documents in accordance with the terms of its Subsidiaries such confidentiality agreement and (including any investment bankerii) from the date hereof until the Effective Time or, attorney or accountant retained by it or any if earlier, the termination of its Subsidiaries) (the “Company Representatives”) tothis Agreement in accordance with Article VI, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing tonot, directly or indirectly, (A) solicit, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing nonpublic non-public information)) any inquiries regarding, or take any action designed to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including the making of any proposal or offer to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the transactions contemplated by this Agreement) involving, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, (B) prior to the Cutoff Date, providing information (pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result lead to, an Acquisition Proposal, (B) other than informing Persons of the provisions contained in this Section 4.2, engage in, a Company Superior continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with or for the purpose of encouraging or facilitating, an Acquisition Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior approve, recommend or enter into, or propose to the Cutoff Dateapprove, terminatingrecommend or enter into, amendingany letter of intent or similar document, modifying agreement, commitment, or waiving agreement in principle (whether written or oral, binding or nonbinding) with respect to, or take any provision of any agreement containing a standstill covenant action to support or in furtherance of, an Acquisition Proposal. Except to the extent permitted pursuant necessary to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of take any actions that the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination third party would otherwise be permitted to take pursuant to this Section 5.2(a4.2 (and in such case only in accordance with the terms hereof), it is understood that such determination necessarily will (i) be based on limited information compared the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, any confidentiality or standstill provision in any agreement to which the determination made for purposes Company or any of Section 7.3(b), its Subsidiaries is a party and (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed asshall, and will be distinct fromshall cause its Subsidiaries to, a enforce the confidentiality and standstill provisions of any such agreement, and the Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubtshall, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes cause its Subsidiaries to, immediately take all steps necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of this Agreement. Without limiting the foregoingParent’s Affiliates, it is understood that under any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Companysuch provisions.

No Solicitation by the Company. (a) The Company agrees that (i) neither it nor any of its Subsidiaries shallDuring the Interim Period, and it shall not authorize or permit any officers, directors, employees, agents or representatives of the Company shall not, nor shall it authorize any Company Subsidiary or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing their respective Representatives to, directly or indirectlyindirectly through another Person, except as otherwise provided below: (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any action designed to approveencourage or induce or facilitate the making, endorsesubmission or announcement of, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including any proposal or offer inquiry that constitutes, or could reasonably be likely to its stockholderslead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 4.4, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or furnish to any Person any non-public information or data with respect to a tender or exchange offeraccess to the properties of the Company in connection with an Acquisition Proposal; (iii) enter into any agreement, mergerarrangement or understanding with respect to any Acquisition Proposal or enter into any agreement requiring it to abandon, consolidation, business combination, purchase terminate or similar transaction or series of transactions (fail to consummate the Merger and the other than the transactions contemplated by this Agreement; or (iv) involvingresolve, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; . The Company shall, and (ii) it will shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing all discussions or negotiations with any parties Person previously conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, . The Company shall not grant any waiver of any standstill provision or waive or otherwise modify the rights or obligations of any Person under any confidentiality agreement. Promptly (B) prior to the Cutoff Date, providing information (pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging but in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and event within two (2) notwithstanding anything in this business days) after the Agreement to the contraryDate, the Board of Directors of Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic data room access previously granted to any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete Person or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Companyits Representatives.

No Solicitation by the Company. (a) The Subject to Section 5.4(b) and Section 5.4(d), during the Interim Period, the Company agrees that (i) neither will not, nor will it nor any of its Subsidiaries shall, and it shall not authorize or permit any officers, directors, employees, agents or representatives of the Company Subsidiaries or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing their respective Representatives to, directly or indirectly, except as otherwise provided below: (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing nonpublic informationany non-public information relating to the Company or any the Company Subsidiary), or induce or take any other action which would reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 5.4, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action designed to approve, endorse, recommend, facilitate or facilitate, directly induce any effort or indirectly, any inquiry, proposal attempt to make or offer implement an Acquisition Proposal (including any proposal or offer Acquisition Proposal received prior to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series the date of transactions (other than the transactions contemplated by this Agreement); (iii) involvingapprove, individually endorse or in recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the aggregateCompany to abandon or terminate its obligations under this Agreement, 20% or more enter into any of the assetsforegoing; or (iv) agree, net revenues resolve or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree commit to do any of the foregoing; . The Company will, and (ii) it will cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing all discussions or negotiations with any parties Person previously conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, . The Company will promptly deny to any third party access to any data room (Bvirtual or actual) prior containing any confidential information previously furnished to the Cutoff Date, providing information (pursuant any such third party relating to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company any Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.

No Solicitation by the Company. (a) The Subject to Section 5.4(b) and Section 5.4(d), during the Interim Period, the Company agrees that (i) neither will not, nor will it nor any of its Subsidiaries shall, and it shall not authorize or permit any officers, directors, employees, agents or representatives of the Company Subsidiaries or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing their respective Representatives to, directly or indirectly, except as otherwise provided below: (i) solicit, initiate or knowingly encourage or facilitate (including by way of furnishing nonpublic informationany non-public information relating to the Company or any the Company Subsidiary), or induce or take any other action which would reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 5.4, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action designed to approve, endorse, recommend, facilitate or facilitate, directly induce any effort or indirectly, any inquiry, proposal attempt to make or offer implement an Acquisition Proposal (including any proposal or offer Acquisition Proposal received prior to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series the date of transactions (other than the transactions contemplated by this Agreement); (iii) involvingapprove, individually endorse or in recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the aggregateCompany or Merger Sub to abandon or terminate its obligations under this Agreement, 20% or more enter into any of the assetsforegoing; or (iv) agree, net revenues resolve or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree commit to do any of the foregoing; . The Company will, and (ii) it will cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing all discussions or negotiations with any parties Person previously conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, . The Company will promptly deny to any third party access to any data room (Bvirtual or actual) prior containing any confidential information previously furnished to the Cutoff Date, providing information (pursuant any such third party relating to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company any Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.

No Solicitation by the Company. (a) The Neither the Company agrees that (i) neither it nor any of its Subsidiaries shall, or affiliates shall (and it the Company shall not authorize or permit any cause the officers, directors, employees, representatives and agents or representatives of the Company or any Company, each of its Subsidiaries (including any investment bankerand each affiliate of the Company, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) including, but not limited to, investment bankers, attorneys and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing accountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or knowingly encourage negotiations with, or provide any information to, any person or group (including by way other than 52 61 Parent, any of furnishing nonpublic informationits affiliates or representatives) concerning any Acquisition Proposal (defined below in Section 6.4(c)), except that nothing contained in this Section 6.4 or take any action designed other provision hereof shall prohibit the Company or the Company Board from (i) taking and disclosing to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including any proposal or offer to its stockholders) the Company's stockholders a position with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the transactions contemplated offer by this Agreement) involving, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company stockholders as, in the good faith judgment of the Board, after receiving advice from outside counsel, is required under applicable law, provided that the Company may not, except as permitted by Section 6.4(b), withdraw or modify, or propose to withdraw or modify, the Recommendations or its stockholders (any such inquiry, proposal position with respect to the Offer or offer being hereinafter referred to as a “Company Acquisition Proposal”)the Merger or approve or recommend, or cooperate with propose to approve or assist, participate or engage in recommend any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amendenter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; and (ii) it Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent . Notwithstanding the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposalforegoing, (B) prior to the Cutoff Date, providing information (time of acceptance of Shares for payment pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18Offer, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that may furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such agreement may allow the counterparty thereto to make a Company entity or group concerning an Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.if:

No Solicitation by the Company. (a) The Company agrees that (i) neither shall not, nor shall it nor permit any of its the Company Subsidiaries shallto, and nor shall it shall not authorize or permit any officers, of its directors, employees, agents officers or representatives of the Company employees or any of its Subsidiaries (including any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it (collectively, the “Agents”), nor shall it encourage or assist any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing Shareholders to, directly or indirectly, (A) solicit, initiate or knowingly encourage (encourage, including by way of furnishing nonpublic information), or take any action designed to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal inquiries or offer (including the making of any proposal or offer that constitutes, or may reasonably be likely to lead to, any Takeover Proposal, (B) enter into or maintain or continue or otherwise participate in discussions or negotiate with any Person in furtherance of such inquiries or to obtain a Takeover Proposal, or agree to or endorse any Takeover Proposal, or authorize or permit any of its stockholdersAgents to take any such action, or (C) enter into any agreement or agreement in principle with any third party with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions (other than the transactions contemplated by this Agreement) involving, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Takeover Proposal. The Company and its Subsidiaries on a consolidated basis or 20% or more of shall not release any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”)from, or cooperate with or assist, participate or engage in waive any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent underprovision of, any confidentiality, confidentiality or standstill or similar agreement, or resolve agreement to propose or agree to do any of the foregoing; and which it is a party. The Company immediately shall (iiA) it will immediately cease and cause to be terminated any all existing discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Takeover Proposal, (B) prior immediately notify Buyer (orally and in writing) if any discussions or negotiations are sought to be initiated, any inquiry or proposal is made, any information is requested with respect to the Cutoff Date, providing information (pursuant to a confidentiality agreement in reasonably customary form transactions contemplated hereby or any Takeover Proposal is made with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company Acquisition Proposal respect to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the , Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutesSubsidiaries, or could reasonably be expected to result inany of their material Assets, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior include in such notification the terms of any such Takeover Proposal that it may receive with respect thereto (and provide Buyer with a copy thereof in writing), including the identity of the soliciting party and (D) keep Buyer informed with respect to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.

No Solicitation by the Company. (a) The Subject to Section 5.3(b) and Section 5.3(d), during the Interim Period, the Company agrees that (i) neither shall not, nor shall it nor any of its Subsidiaries shall, and it shall not authorize or permit any officers, directors, employees, agents or representatives of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing Representatives to, directly or indirectly, except as otherwise provided below: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing nonpublic informationany non-public information relating to the Company), or knowingly induce or knowingly take any other action which would reasonably be expected to lead to the making, submission or announcement of, any proposal or inquiry that constitutes, or is reasonably likely to lead to, an Acquisition Proposal; (ii) other than informing Persons of the provisions contained in this Section 5.3, enter into, continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action designed to approve, endorse, recommend, knowingly facilitate or facilitate, directly knowingly induce any effort or indirectly, any inquiry, proposal attempt to make or offer implement an Acquisition Proposal (including any proposal or offer Acquisition Proposal received prior to its stockholders) with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series the date of transactions (other than the transactions contemplated by this Agreement); (iii) involvingapprove, individually endorse or in recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the aggregateCompany to abandon or terminate its obligations under this Agreement, 20% or more enter into any of the assetsforegoing; or (iv) agree, net revenues resolve or net income of the Company and its Subsidiaries on a consolidated basis or 20% or more of any class of the voting securities of the Company, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or engage in any substantive discussions or negotiations concerning a Company Acquisition Proposal, or amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree commit to do any of the foregoing; . The Company shall, and (ii) it will shall cause its Representatives to, immediately cease and cause to be terminated any existing all discussions or negotiations with any parties Person previously conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal, . The Company shall promptly deny to any third party access to any data room (Bvirtual or actual) prior containing any confidential information previously furnished to the Cutoff Date, providing information (pursuant any such third party relating to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between Parent and the Company (the “Confidentiality Agreement”) (provided that such agreement may allow the counterparty thereto to make a Company any Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could reasonably be expected to result in, a Company Superior Proposal, to the extent the Board of Directors of the Company, after consultation with its outside legal advisors, determines that the failure to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Company.

No Solicitation by the Company. (a) The Company agrees that From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.01, except as expressly permitted by Section 6.05(b) or Section 6.05(d) and except as related solely to the Spin-Off, the transactions contemplated by the ESG Purchase Agreement or the ESG Business or any of the assets or operations thereof, (i) neither it nor any of the Company shall cease, shall cause its Subsidiaries shallto cease and shall instruct and cause its officers, directors and other Representatives to cease, and it shall not authorize or permit cause to be terminated all existing discussions, negotiations, solicitations, encouragement and communications with any officers, directors, employees, agents or representatives of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (the “Company Representatives”) to, and on becoming aware of it will use its reasonable best efforts to stop such Company Representative from continuing to, directly or indirectly, solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any action designed to approve, endorse, recommend, or facilitate, directly or indirectly, any inquiry, proposal or offer (including any proposal or offer to its stockholders) Persons with respect to a tender or exchange offer, merger, consolidation, business combination, purchase or similar transaction or series of transactions any Company Acquisition Proposal (other than the transactions contemplated by this AgreementAgreement with Parent and Merger Sub); (ii) involving, individually or in the aggregate, 20% or more of the assets, net revenues or net income of the Company shall not, and shall not authorize or permit any of its Subsidiaries on a consolidated basis Representatives to, directly or 20% or more of any class of the voting securities of the Companyindirectly through another Person, including any merger, consolidation, business combination, purchase or similar transaction in which 20% or more of the Company’s voting securities is issued to a third party or its stockholders (any such inquiry, proposal or offer being hereinafter referred to as a “Company Acquisition Proposal”), or cooperate with or assist, participate or A) engage in any substantive discussions communication or negotiations concerning a Company Acquisition Proposalinitiate, solicit, facilitate or amend, terminate, waive encourage any action that would constitute or fail would reasonably be expected to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or resolve to propose or agree to do any of the foregoing; and (ii) it will immediately cease and cause to be terminated any existing negotiations with any parties conducted heretofore with respect to any of the foregoing; provided that (1) nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard lead to a Company Acquisition Proposal, (B) prior to the Cutoff Dateengage in or continue negotiations or discussions with, providing or provide any information or data to, any Person (pursuant to a confidentiality agreement in reasonably customary form with terms at least as restrictive in all matters as the Confidentiality Agreement dated December 18, 2010, between other than Parent and the Company (the “Confidentiality Agreement”or any of its Affiliates or Representatives) (provided that such agreement may allow the counterparty thereto to make a Company Acquisition Proposal to the Company’s Board of Directors in connection with the negotiation and discussions permitted by this Section 5.2) and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) relating to or engaging in any negotiations or substantive discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or could would reasonably be expected to result in, a lead to any Company Superior Acquisition Proposal, (C) approve, endorse, recommend, execute or enter into any Alternative Acquisition Agreement or (D) resolve or agree to do any of the foregoing and (iii) the Company shall, within one (1) Business Day of the date of this Agreement and thereafter, terminate all access by third parties to any data room (virtual or actual) containing any of the Company’s information relating to the extent Ex-ESG Company and request the Board destruction or return of Directors all non-public information previously provided by or on behalf of the Company, after consultation with any of its outside legal advisors, determines that the failure Subsidiaries or their Representatives to do so would be inconsistent with its fiduciary obligations, or (C) prior to the Cutoff Date, terminating, amending, modifying or waiving any provision of any agreement containing a standstill covenant to the extent permitted pursuant to Section 5.1(s) hereof and (2) notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company or any committee thereof may make a Company Adverse Recommendation Change in accordance with Section 5.3(d). For the purposes of making a Company Superior Proposal determination pursuant to this Section 5.2(a), it is understood that all such determination necessarily will (i) be based on limited information compared to the determination made for purposes of Section 7.3(b), (ii) require assumptions that shall be made in the good faith judgment of the Company Board of Directors and (iii) not be as complete or informed as, and will be distinct from, a Company Superior Proposal determination made for purposes of Section 7.3(b). For the avoidance of doubt, it is understood that a Company Superior Proposal determination made for purposes of this Section 5.2(a) shall not constitute a Company Superior Proposal determination for any other purpose under this Agreement (except for Section 7.5(a)(i)(A)(1)(a)) and shall not by itself constitute a Company Adverse Recommendation Change for purposes of this Agreement. Without limiting the foregoing, it is understood that any violation of this Section 5.2 by any Subsidiary of the Company or the Company Representatives shall be deemed to be a breach of this Section 5.2 by the Companythird parties.