Common use of No Solicitation of Transactions Clause in Contracts

No Solicitation of Transactions. The Company, its affiliates --------------------------------------------- and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, only if such person has submitted a proposal to the Board of Directors of the Company relating to any such transaction and the Board by a majority vote determines in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, solicit, initiate or knowingly encourage discussions or negotiations with, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law.

No Solicitation of Transactions. The Company, its affiliates --------------------------------------------- and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that which was not solicitedencouraged, solicited or initiated or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, and may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, in each case (whether furnishing information and access or participating in discussions and negotiations) only if such person has submitted a written proposal to the Board of Directors of the Company relating to any such transaction and the Board by a majority vote determines in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorBoard's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and thereof, shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, participate in or initiate or knowingly encourage discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 ; provided, however, that nothing herein shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorBoard's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determinesby majority vote shall have determined in good faith, based upon the advice of outside counsel, that the failure failing to make release such release third party or waiver is reasonably likely to waive such provisions would constitute a breach of the fiduciary duties of the Board of Director's fiduciary duties Directors under applicable law.

No Solicitation of Transactions. The CompanyNeither MS Financial, nor its affiliates --------------------------------------------- and their respective officersSubsidiary shall, directorsdirectly or indirectly, employeesthrough any officer, representatives and agents shall immediately cease director, employee, agent or otherwise, solicit, initiate or encourage the submission of any existing discussions proposal or negotiations, if any, with offer from any parties conducted heretofore with respect Person relating to any acquisition or exchange purchase of all or any material portion of the assets of, or any equity interest in, the Company MS Financial, Subsidiary of MS Financial or any of its subsidiaries Securitization Trust, or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assetsconsolidation, sale of shares of capital stock share exchange, business combination or other similar transaction (including an exchange with MS Financial, the Subsidiary of stock or assets) involving the Company MS Financial or any subsidiary Securitization Trust, or division participate in any negotiations or discussions regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the Companyforegoing; provided, only if such person has submitted a proposal to however, that nothing contained in this Section 5.4 shall prohibit the Board of Directors of MS Financial from authorizing MS Financial or the Company relating Board's other designees to review, or to furnish information to, or entering into discussions or negotiations with, any Person in connection with an unsolicited proposal in writing by such Person to acquire MS Financial pursuant to a merger, consolidation, share exchange, business combination or other similar transaction and or to acquire all or substantially all of the assets of MS Financial or any of its Subsidiaries received by the Board by a majority vote of Directors of MS Financial after the date of this Agreement, if, and only to the extent that, (a) the Board of Directors of MS Financial, after consultation with its independent legal and financial advisors and taking into consideration the advice of such advisors, determines in good faith, based upon the advice of outside counsel to the Company, faith that failing to take such action is reasonably likely to constitute a breach of required for the Board of DirectorDirectors of MS Financial to comply with its fiduciary duties to stockholders imposed by Delaware Law and (b) prior to furnishing such information to, or entering into discussions or negotiations with, such Person, MS Financial (i) gives Search as promptly as practicable prior oral and written notice of MS Financial's fiduciary duty under applicable lawintention to furnish such information or begin such discussions and (ii) receives from such Person an executed confidentiality agreement on terms no less favorable to MS Financial than those contained in the Confidentiality Agreement between Search and MS Financial dated October 15, 1996. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and MS Financial shall notify Parent immediately Search promptly if any proposal (oral or written) offer, or any inquiry or contact with any Person with respect thereto, is made (except Parent shall be notified by 10:30 a.m. on the next business day and shall, in cases where any such proposal is not received during normal business hours) and shall in such noticenotice to Search, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawingsuch proposal, modifying offer, inquiry or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreementcontact. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, solicit, initiate or knowingly encourage discussions or negotiations with, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company MS Financial agrees not to release any third party from, or waive any provisions provision of, any confidentiality or standstill agreement to which the Company MS Financial is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure . MS Financial immediately shall cease and cause to make such release be terminated all existing discussions or waiver is reasonably likely negotiations with any Persons conducted heretofore with respect to constitute a breach any of the Board of Director's fiduciary duties under applicable lawforegoing.

No Solicitation of Transactions. The Company, its affiliates --------------------------------------------- and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any more than 20% of the equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, the The Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that which was not solicitedencouraged, solicited or initiated or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms agreements, and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, only if such person has submitted a written proposal to the Board of Directors of the Company relating to any such transaction and the Board by a majority vote determines in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorBoard's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) made and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, participate in or initiate or knowingly encourage discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any more than 20% of the shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 ; provided, however, that nothing herein shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorBoard's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determinesshall have determined in good faith, based upon the advice of outside counsel, that the failure failing to make release such release third party or waiver is reasonably likely to waive such provisions would constitute a breach of the fiduciary duties of the Board of Director's fiduciary duties Directors under applicable law.

No Solicitation of Transactions. The CompanyCompany shall not, its affiliates --------------------------------------------- and their respective officersdirectly or indirectly, directorsthrough any officer, employeesdirector, representatives and agents shall immediately cease agent or otherwise, solicit, initiate or encourage the submission of any existing discussions proposal or negotiations, if any, with offer from any parties conducted heretofore with respect person relating to any acquisition or exchange purchase of all or (other than in the ordinary course of business) any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or participate in any negotiations regarding, or furnish to any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to do or seek any of its subsidiaries. At the foregoing; provided, however, that nothing contained in this Section 6.05 shall prohibit the Board from furnishing information to, or entering into discussions or negotiations with, any time prior person in connection with an unsolicited (from the date of this Agreement) proposal in writing by such person to consummation acquire the Company pursuant to a merger, consolidation, share exchange, share purchase, business combination or other similar transaction or to acquire all or substantially all of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division assets of the Company, if, and only if such person has submitted a proposal to the Board of Directors of extent that, (i) the Company relating to any such transaction and the Board by a majority vote Board, after consultation with independent legal counsel (which may include its regularly engaged independent legal counsel), determines in good faith, based upon the advice of outside counsel to the Company, faith that failing to take such action is reasonably likely required for the Board to constitute a breach comply with its fiduciary duties to stockholders imposed by Nevada Law and (ii) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company uses its reasonable best efforts to obtain from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement. The Company immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to any of the Board of Director's fiduciary duty under applicable lawforegoing. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and Company shall notify Parent immediately promptly if any such proposal (oral or written) offer, or any inquiry or contact with any person with respect thereto, is made (except Parent shall be notified by 10:30 a.m. on the next business day and shall, in cases where any such proposal is not received during normal business hours) and shall in such noticenotice to Parent, indicate in reasonable detail the identity of the offeror person making such proposal, offer, inquiry or contact and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawingsuch proposal, modifying offer, inquiry or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, solicit, initiate or knowingly encourage discussions or negotiations with, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable lawcontact. The Company agrees not to release any third party from, or waive any provisions provision of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law.

No Solicitation of Transactions. (a) The CompanyCompany and its Subsidiaries shall not, its affiliates --------------------------------------------- and shall cause their respective officersAffiliates not to, directorsdirectly or indirectly, employeesthrough any officer, representatives and agents shall immediately cease director, employee, investment banker, financial advisor, attorney, accountant or other representative of any existing discussions of them or negotiationsotherwise, if anyinitiate, solicit or encourage, including by way of furnishing non-public information or assistance, or participate in any discussion or negotiations of any type, directly or indirectly, or enter into a confidentiality agreement, letter of intent or purchase agreement, merger agreement or other similar agreement with any parties conducted heretofore Person other than the Purchaser with respect to any acquisition or exchange a sale of all or any material significant portion of the assets of, or any equity interest in, of the Company or any of its subsidiaries Subsidiaries, or a merger, consolidation, business combination, sale of all or any business combination with or involving portion of the capital stock of the Company or any of its subsidiaries. At any time prior Subsidiaries, or the liquidation or similar extraordinary transaction with respect to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by the Company or any of its affiliates Subsidiaries (each, an “Acquisition”), provided, that if any time prior to the date that the Company Stockholder Approval is obtained, the Board of Directors of the Company, in the exercise of its fiduciary duties, determines in good faith, after consultation with outside counsel, that to do otherwise would not be in the best interests of the Company’s stockholders, the Company may, in response to a Superior Proposal which did not result from a breach of this Section 5.5, and subject to providing prior notice of its decision to the Purchaser, (i) furnish information with respect to the Company to the person making the Superior Proposal pursuant to a customary confidentiality agreement, and (ii) participate in discussions or negotiations regarding such Superior Proposal. The Company shall notify the Purchaser orally, within one (1) Business Day, and in writing, as promptly as practicable, of all relevant terms of any inquiry or proposal by a third party to do any of the foregoing that the Company or any of its respective Affiliates or their any of its respective officers, directors, partners, managers, employees, investment bankers, financial advisors, attorneys, accountants or other representatives may receive relating to any of such matters. In the event such inquiry or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained proposal is in the Parent Confidentiality Agreement. Additionallywriting, the Company, its affiliates, officers, directors employees Company shall deliver to the Purchaser a copy of such inquiry or representatives, may participate in discussions and negotiate proposal together with such person concerning any merger, sale written notice. (b) The Board of assets, sale Directors of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company shall not (i) withdraw, or any subsidiary propose publicly to withdraw, in a manner adverse to the Purchaser, the approval or division of the Company, only if such person has submitted a proposal to recommendation by the Board of Directors of the Company relating of the Merger or this Agreement, (ii) modify, or propose publicly to any such transaction and modify, in a manner adverse to the Purchaser, the approval or recommendation by the Board by of Directors of the Company of the Merger or this Agreement or (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition. Notwithstanding the foregoing, at any time prior to the date that the Company Stockholder Approval is obtained, in response to a majority vote Superior Proposal which did not result from a breach of Section 5.5, if the Board of Directors of the Company, in the exercise of its fiduciary duties, determines in good faith, based upon after consultation with outside counsel, that to do otherwise would not be in the advice best interests of outside counsel to the Company’s stockholders, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawingmay (A) modify or propose publicly to modify, modifying or amending its recommendation of in a manner adverse to the OfferPurchaser, the Merger and the other transactions contemplated approval or recommendation by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates, nor any of its or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, solicit, initiate or knowingly encourage discussions or negotiations with, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from takingof the Company of the Merger or this Agreement and/or (B) terminate this Agreement, and disclosing to but, in the Company's stockholderscase of clause (B), a position contemplated by Rules 14d-9 and 14e-2 promulgated under only after the Exchange Act with regard to any tender offer; provided, further, fifth (5th) Business Day following the Purchaser’s receipt of written notice advising the Purchaser that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any is prepared to accept a Superior Proposal, specifying the material terms and conditions of such tender offer unless Superior Proposal and identifying the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take Person making such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable lawSuperior Proposal.

No Solicitation of Transactions. The CompanyCompany shall, and shall cause its affiliates --------------------------------------------- Subsidiaries and its and their respective officers, directors, management employees, representatives and agents shall to, immediately cease any all existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any direct or indirect acquisition of or exchange of for (i) all or any material portion of the assets ofAssets of the Company and its Subsidiaries taken as a whole, (ii) more than 15% of the outstanding equity interests in the Company, (iii) any material equity interest in any of the material Subsidiaries of the Company, or (iv) any equity interest inmerger, the Company consolidation or any of its subsidiaries or any other business combination transaction with or involving the Company or any of its subsidiariesmaterial Subsidiaries (each, a "Transaction"). At any time prior to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by Neither the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, only if such person has submitted a proposal to the Board of Directors of the Company relating to any such transaction and the Board by a majority vote determines in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliatesSubsidiaries, nor any of its or their respective officers, directors, management employees, representatives or agents, and agents shall, directly or indirectly, encourage, solicit, participate in, facilitate or initiate or knowingly encourage discussions or negotiations with, or provide any corporationinformation to, partnership, person or other entity any Person or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser Sub or any designees of Parent or PurchaserSub) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving Transaction; provided that the Company (and its Subsidiaries and its and their respective officers, directors, employees, representatives or agents) may, prior to the Company Stockholders Meeting, participate in negotiations or discussions with, and provide information to, any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent Person concerning a written proposal with respect to a Transaction made by such Person to the Board of Directors from takingof the Company after the date of this Agreement if (A) such proposal or proposed Transaction was not solicited, and disclosing to the Company's stockholdersinitiated, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; providedfacilitated or encouraged in violation of this Agreement, further, that (B) the Board of Directors shall not recommend that the stockholders of the Company tender their Shares Company, in connection with any its good faith judgment, believes that such tender offer unless Transaction is reasonably likely to result in a Superior Transaction, (C) the Board by majority vote shall have determined of Directors of the Company, in its good faith, faith judgment (based upon the on advice of outside counsel to legal counsel), determines that the Company, that failing failure to take such action is reasonably likely to constitute a breach of violate its fiduciary duties to the Board of DirectorCompany's fiduciary duty stockholders under applicable law. The Company agrees not , (D) prior to release participating in any third party fromsuch discussions or negotiations with, or waive any provisions ofproviding such information to, any confidentiality or standstill agreement to which the Company is a partysuch Person, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board Company receives from such Person an executed confidentiality and standstill agreement with terms no more favorable to such Person that those contained in the Confidentiality Agreement and (E) the Company complies with the other provisions of Director's fiduciary duties under applicable lawthis Section 5.

No Solicitation of Transactions. The CompanyCompany shall, and shall cause its affiliates --------------------------------------------- Subsidiaries and its and their respective officers, directors, management employees, representatives and agents shall to, immediately cease any all existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any direct or indirect acquisition of or exchange of for (i) all or any material portion of the assets ofAssets of the Company and its Subsidiaries taken as a whole, (ii) more than 15% of the outstanding equity interests in the Company, (iii) any material equity interest in any of the material Subsidiaries of the Company, or (iv) any equity interest inmerger, the Company consolidation or any of its subsidiaries or any other business combination transaction with or involving the Company or any of its subsidiariesmaterial Subsidiaries (each, a "Transaction"). At any time prior to consummation of the Offer, the Company may, directly or indirectly, furnish information and access, in each case only in response to a request for such information or access to any person made after the date hereof that was not solicited, initiated or knowingly encouraged by Neither the Company or any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms and conditions (including standstill provisions) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, only if such person has submitted a proposal to the Board of Directors of the Company relating to any such transaction and the Board by a majority vote determines in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.5, neither the Company or any of its affiliates----------- Subsidiaries, nor any of its or their respective officers, directors, management employees, representatives or agents, and agents shall, directly or indirectly, encourage, solicit, participate in, facilitate or initiate or knowingly encourage discussions or negotiations with, or provide any corporationinformation to, partnership, person or other entity any Person or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser Sub or any designees of Parent or PurchaserSub) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving Transaction; provided that the Company (and its Subsidiaries and its and their respective officers, directors, employees, representatives or agents) may, prior to the Company Stockholders Meeting, participate in negotiations or discussions with, and provide information to, any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent Person concerning a written proposal with respect to a Transaction made by such Person to the Board of Directors from takingof the Company after the date of this Agreement if (A) such proposal or proposed Transaction was not solicited, and disclosing to the Company's stockholdersinitiated, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; providedfacilitated or encouraged in violation of this Agreement, further, that (B) the Board of Directors shall not recommend that the stockholders of the Company tender their Shares Company, in connection with any its good faith judgment, believes that such tender offer unless Transaction is reasonably likely to result in a Superior Transaction, (C) the Board by majority vote shall have determined of Directors of the Company, in its good faith, faith judgment (based upon the on advice of outside counsel to legal counsel), determines that the Company, that failing failure to take such action is reasonably likely to constitute a breach of violate its fiduciary duties to the Board of DirectorCompany's fiduciary duty stockholders under applicable law. The Company agrees not , (D) prior to release participating in any third party fromsuch discussions or negotiations with, or waive any provisions ofproviding such information to, any confidentiality or standstill agreement to which the Company is a partysuch Person, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board Company receives from such Person an executed confidentiality and standstill agreement with terms no more favorable to such Person that those contained in the Confidentiality Agreement and (E) the Company complies with the other provisions of Director's fiduciary duties under applicable lawthis Section 5.

No Solicitation of Transactions. The Company, its affiliates --------------------------------------------- and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiariessubsidiaries (other than the Santee Asset Sales). At any time prior to consummation of the Offer, the The Company (i) may, directly or indirectly, furnish information and accessaccess to any corporation, partnership, person or other entity or group, in each case (other than in the case of Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) only in response to a request for such information or access to any person made after the date hereof that which was not solicitedencouraged, initiated solicited or knowingly encouraged initiated, directly or indirectly, by the Company or Company, any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms agreements, and conditions (including standstill provisionsii) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, but only if such person entity or group has submitted a written proposal to the Company Board of Directors of the Company relating to any such transaction and the Company Board by a majority vote determines in its good faithfaith judgment, based upon on the written advice of independent outside legal counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorCompany Board's fiduciary duty under applicable law. The Company Board of Directors shall provide a copy of any such written proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any such request or proposal (oral in each case whether written or writtenoral) is made (except made, shall deliver to Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions a copy of any written request or proposal and a description of any oral request or proposal so received by the Company Board and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Company Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.55.4, neither none of the Company or any of Company, its affiliates, nor any of its affiliates or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, participate in or initiate or knowingly encourage discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Purchaser, any affiliate or associate of Parent and Purchaser or any designees of Parent or Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law.

No Solicitation of Transactions. The Company, its affiliates --------------------------------------------- and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company or any of its subsidiaries or any business combination with or involving the Company or any of its subsidiaries. At any time prior to consummation of the Offer, the The Company (i) may, directly or indirectly, furnish information and accessaccess to any corporation, partnership, person or other entity or group, in each case (other than in the case of the Parent and the Purchaser, any affiliate or associate of the Parent and the Purchaser or any designees of the Parent or the Purchaser) only in response to a request for such information or access to any person made after the date hereof that which was not solicitedencouraged, initiated solicited or knowingly encouraged initiated, directly or indirectly, by the Company or Company, any of its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms agreements, and conditions (including standstill provisionsii) that are no less favorable than the terms and conditions contained in the Parent Confidentiality Agreement. Additionally, the Company, its affiliates, officers, directors employees or representatives, may participate in discussions and negotiate with such person entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company, but only if such person entity or group has submitted a written proposal to the Company Board of Directors of the Company relating to any such transaction and the Company Board by a majority vote determines in its good faithfaith judgment, based upon on the written advice of independent outside legal counsel to the Company, that failing to take such action is reasonably likely to would constitute a breach of the Board of DirectorCompany Board's fiduciary duty under applicable law. The Company Board of Directors shall provide notify the Parent immediately if any such request or proposal (in each case whether written or oral) is made, shall deliver to the Parent a copy of any such written request or proposal to Parent immediately after receipt thereof (except such written proposal shall be provided to Parent by 10:30 a.m. on the next business day in cases where such written proposal is not received during normal business hours) and shall notify Parent immediately if any proposal (oral or written) is made (except Parent shall be notified by 10:30 a.m. on the next business day in cases where such proposal is not received during normal business hours) and shall in such notice, indicate in reasonable detail the identity of the offeror and the terms and conditions a description of any oral request or proposal so received by the Company Board and shall keep the Parent promptly advised of all developments which could reasonably be expected to culminate in the Company Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger and the other transactions contemplated by this Agreement. Except as set forth in this Section 6.55.3, neither none of the Company or any of Company, its affiliates, nor any of its affiliates or their respective officers, directors, employees, representatives or agents, shall, directly or indirectly, encourage, solicit, participate in or initiate or knowingly encourage discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than the Parent and the Purchaser, any affiliate or associate of the Parent and the Purchaser or any designees of the Parent or the Purchaser) concerning any merger, sale of any material portion or assets, sale of any shares of capital stock or similar transactions (including an exchange of stock or assets) involving the Company or any subsidiary or division of the Company. Nothing in this Section 6.5 shall prevent the Board of Directors from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that the Board of Directors shall not recommend that the stockholders of the Company tender their Shares in connection with any such tender offer unless the Board by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failing to take such action is reasonably likely to constitute a breach of the Board of Director's fiduciary duty under applicable law. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party, unless the Board of Directors determines, based upon the advice of outside counsel, that the failure to make such release or waiver is reasonably likely to constitute a breach of the Board of Director's fiduciary duties under applicable law.