Common use of No Solicitations Clause in Contracts

No Solicitations. (a) From the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither it, nor any of its Subsidiaries, Affiliates or agents shall, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it or any of its Subsidiaries, Affiliates or agents to, solicit, initiate or knowingly encourage the submission of, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC").

No Solicitations. (a) From Except as provided below, from the date hereof of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement or the Effective Time, Saratoga agrees that neither it, the Company nor any of its Subsidiaries, Affiliates or agents Subsidiaries shall, nor shall it they authorize or permit any of its officersofficer, directors or employees or any director, employee, investment banker, financial advisor, attorney, accountant or other advisor or representative or agent (collectivelyeach, a "RepresentativesRepresentative") retained by it or acting for or on behalf of the Company or any of its Subsidiaries, Affiliates or agents Subsidiaries to, directly or indirectly, (i) take any action to knowingly solicit, initiate or knowingly encourage the submission ofinitiate, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate incontinue, facilitate or encourage (including by way of furnishing or disclosing non-public information) any effort offer or attempt by any proposal for a merger, consolidation or other person to do or seek to do any of business combination involving the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Company or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% manner, directly or more of any class of equity securities ofindirectly, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 2015% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more shares of any class of equity voting securities of Saratoga the Company or any Significant Subsidiary of Saratoga (its Subsidiaries or a substantial portion of the assets of the Company or any of its Subsidiaries, other than pursuant to the transactions contemplated by this Agreement and or by the Stock Option Agreement). A "Significant Subsidiary" means Agreement (any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the foregoing being referred to as an "SECAcquisition Proposal")., or (ii) knowingly engage in negotiations, discussions or communications regarding or disclose any information relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to any person, corporation, partnership or other entity or group (a "Potential Acquiror") that may be considering making, or has made, an Acquisition Proposal. The Board of Directors of the Company (including any committee thereof) shall not withdraw or modify in a manner adverse to Parent the approval and recommendation of the Offer, this Agreement, the Stock Option Agreement or the Merger or approve or recommend any Acquisition Proposal. Notwithstanding the foregoing, (i) the Company may participate in discussions or negotiations with or furnish information to any third party which makes a written Acquisition Proposal which either (x) is not subject to a financing contingency and involves the purchase for cash of 100% of the Company Common Stock at a price per share greater than the purchase price of the Offer or (y) provides for the acquisition of 100% of the Company Common Stock for consideration, not consisting entirely of cash, which the Company's Board of Directors determines, based on the advice of its financial advisor, is financially superior to the purchase price of the Offer (in the case of either (x) or (y), a "Superior Proposal"), and (ii) the Board of Directors or any committee thereof may withdraw or modify in a manner adverse to Parent the approval or recommendation of this Agreement, the Offer or the Merger and may approve or recommend any such Superior Proposal, if, in the case of either (i) or (ii), the Board of Directors of the

No Solicitations. (a) From Such Shareholder shall not, nor, to the date hereof until the earlier of the Effective Time or the termination of this Agreementextent applicable to such Shareholder, Saratoga agrees that neither it, nor permit any of its Subsidiaries, Affiliates or agents shallaffiliates to, nor shall it authorize any partner, officer, director, advisor or permit any of its officersrepresentative of, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it such Shareholder or any of its Subsidiaries, Affiliates or agents affiliates to, prior to or on the Effective Date (a) solicit, initiate or knowingly encourage (including by way of furnishing information or assistance) the submission ofof any inquiries, proposals or offers from any person relating to an Acquisition Proposal (as defined in the Merger Agreement), (b) enter into or participate in any discussions or negotiations with regarding, or provide information furnish to any person or group entity any non-public information with respect to any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal, (c) take any other action to knowingly facilitate or cooperate with any inquiries or the making of persons any proposal which constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (other than the respective parties to this Agreementd) concerning, any Takeover Proposal (as defined below) or enter into any agreement with respect to an Acquisition Proposal, (e) solicit proxies or become a third party relating "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) with respect to a Takeover an Acquisition Proposal or assistotherwise encourage or assist any party in taking or planning any action that would compete with, participate in, facilitate restrain or encourage any effort otherwise serve to interfere with or attempt by any other person to do or seek to do any inhibit the timely consummation of the foregoing. Without limiting Merger in accordance with the foregoing, it is understood that any violation terms of the restrictions set forth in Merger Agreement, (f) initiate a shareholders' vote or action by consent of the preceding sentence by any directorCompany's shareholders with respect to an Acquisition Proposal, officer or Affiliate (g) become a member of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not a "group" (as such Person term is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more Section 13(d) of the assets ofExchange Act) with respect to any voting securities of the Company that takes any action in support of an Acquisition Proposal; provided, Saratoga or any Significant Subsidiary of Saratogahowever, or any tender offer or exchange offer that if consummated would result in this section shall not apply to any person beneficially owning 20% in his or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of her capacity as a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X director of the Securities and Exchange Commission (the "SEC")Company.

No Solicitations. (a) From the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither itNeither Progress Energy nor Progress Fuels will take, nor will they permit the Companies or any Affiliate of its Subsidiaries, Affiliates Progress Energy or agents shall, nor shall it Progress Fuels (or authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") Person retained by it or acting for or on behalf of Progress Fuels, the Companies or any of its Subsidiariessuch Affiliate) to take, Affiliates directly or agents toindirectly, any action to initiate, assist, solicit, initiate receive, negotiate, encourage or knowingly encourage the submission of, accept any offer or enter into discussions or negotiations with or provide information inquiry from any Person (a) to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into reach any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, a Business Combination with respect to the Business (or any part thereof), the Companies or the Subsidiaries with any Person is purporting other than Holdings or its Affiliates or (b) to act on behalf of Saratoga furnish or cause to be furnished any information with respect to the Business or any of the Companies or Subsidiaries to any Person (other than Holdings or its Subsidiaries Affiliates) who Progress Energy, Progress Fuels, the Companies or otherwisesuch Affiliate (or any such Person acting for or on their behalf) knows or has reason to believe is in the process of considering any Business Combination with respect to the Business (or any part thereof), shall be deemed any of the Companies or Subsidiaries. If Progress Energy, Progress Fuels, the Companies or any such Affiliate (or any such Person acting for or on their behalf) receives from any Person (other than Holdings or its Affiliates) any offer, inquiry or informational request referred to be a breach above, Progress Fuels will promptly advise such Person, by written notice, of the terms of this Section 5.4(a) by Saratoga. As used 6.8 and will promptly, orally and in this Agreementwriting, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary advise Holdings of such person within the meaning offer, inquiry or request and deliver a copy of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")such notice to Holdings.

No Solicitations. (a) From the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga Ameritrade agrees that neither it, it nor any of its Subsidiaries, Affiliates or agents Subsidiaries shall, nor and that it shall it authorize or permit any of use all reasonable efforts to cause its and its Subsidiaries’ directors, officers, directors or employees or employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "“Representatives"”) retained by it or any of its Subsidiaries, Affiliates or agents ) not to, solicitdirectly or indirectly, initiate (i) initiate, solicit or knowingly encourage or facilitate any inquiries or the submission of, or enter into discussions or negotiations with or provide information to making of any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities ofwith respect to, or a transaction to effect, (A) a merger, reorganization, share exchange, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20Ameritrade or any of its Subsidiaries, other than any such merger, share exchange, consolidation or other business combination resulting in or involving (x) the purchase or other acquisition by, or the sale or issuance to, any Person of securities representing (or convertible into or exchangeable for securities that would represent) less than 15% of the total voting power of Ameritrade or any of its Subsidiaries or (y) the purchase or sale of assets representing less than 15% of the aggregate fair market value of the consolidated assets (including stock of Ameritrade’s Subsidiaries) of Ameritrade and its Subsidiaries, taken as a whole or (B) any purchase or sale of assets representing 15% or more of the aggregate fair market value of the consolidated assets (including stock of Ameritrade’s Subsidiaries) of Ameritrade and its Subsidiaries, taken as a whole, or (C) any purchase or sale (by merger or otherwise) of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that for, securities of Ameritrade that, if consummated consummated, would result in any person Person beneficially owning 20securities representing 15% or more of any class the total voting power of equity securities of Saratoga Ameritrade or any of its “Significant Subsidiary of Saratoga Subsidiaries” (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of as defined in Rule 1-02 of Regulation S-X X) (any such proposal, offer or transaction (other than a proposal or offer made by TD or an Affiliate thereof) being hereinafter referred to as an “Acquisition Proposal”), (ii) have any discussions with or provide any confidential information or data to any Person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal (except as permitted by Section 5.3(c)), (iv) execute or enter into, or (except as permitted by Section 5.3(c)) approve or recommend, or publicly propose to approve or recommend, any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement, option agreement or other similar agreement related to any Acquisition Proposal, (v) grant any approval pursuant to Section 203(a)(1) or Section 203(a)(3) of the Securities DGCL or (vi) publicly propose or agree to do any of the foregoing. Ameritrade shall advise its and its Significant Subsidiaries’ directors and executive officers (as such term is defined in Rule 3b-7 under the Exchange Commission Act, “Executive Officers”) and its and their Representatives of the restrictions contained in this Section 5.4 and shall instruct such Persons to comply herewith. Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to obtaining the Ameritrade Required Votes and any Additional Votes, Ameritrade receives a bona fide Acquisition Proposal not solicited in material violation of Section 5.4(a) and its Board of Directors (acting upon the recommendation of the Special Committee) concludes in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, Ameritrade may, and may permit its Subsidiaries and its and their Representatives to, furnish or cause to be furnished confidential information or data to the Person making such Acquisition Proposal and participate in negotiations or discussions with such Person regarding such Acquisition Proposal if and to the extent that the Ameritrade Board of Directors (acting upon the recommendation of the Special Committee) concludes in good faith, after consultation with its outside counsel, that failure to take such action would be inconsistent with its fiduciary duties under applicable law; provided that prior to providing (or causing to be provided) any confidential information or data permitted to be provided pursuant to this sentence, Ameritrade shall have entered into a confidentiality agreement with such third party on confidentiality terms no less favorable to Ameritrade than the Confidentiality Agreement, dated November 7, 2004, between TD and Ameritrade (the "SEC"“Confidentiality Agreement”); and provided further, that Ameritrade shall also provide to TD a copy of any such confidential information or data that it is providing to any third party pursuant to this Section 5.4 to the extent not previously provided or made available to TD.

No Solicitations. (a) From Neither the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither it, Company nor any of its SubsidiariesControlled Entities shall (whether directly or indirectly through advisors, Affiliates agents or agents shallother intermediaries), nor shall it the Company or any of its Controlled Entities authorize or permit any of its or their officers, directors directors, agents, representatives, advisors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it or any of its Subsidiaries, Affiliates or agents subsidiaries to, (a) solicit, initiate initiate, encourage (including by way of furnishing information) or take any action knowingly encourage to facilitate the submission ofof any inquiries, proposals or enter into discussions offers (whether or negotiations with or provide information to not in writing) from any person or group of persons (other than Holdings and its affiliates) relating to, other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt transactions contemplated by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean (i) any inquiry, proposal acquisition or offer to acquire in any manner 20purchase of 5% or more of the consolidated assets of the Company and its Controlled Entities or of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga Company or any Significant Subsidiary of Saratogaits Controlled Entities, or (ii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga the Company or any Significant Subsidiary of Saratoga its Controlled Entities, (iii) any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Controlled Entities whose assets, individually or in the aggregate, constitute 5% or more of the consolidated assets of the Company, or (iv) any other than pursuant transaction the consummation of which would or would reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would or would reasonably be expected to materially dilute the benefits to Holdings or the Purchaser of the transactions contemplated by this Agreement (collectively, "Transaction Proposals"), or agree to or endorse any Transaction Proposal, or (b) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any other person any information with respect to its business, properties or assets in connection with the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than any of Holdings and its affiliates) to do or seek any of the foregoing; provided, however, that the foregoing shall not prohibit the Company, prior to the receipt of the Requisite Stockholder Approval of the transactions contemplated hereby, (A) from complying with Rule 14e-2 and Rule 14d-9 under the Exchange Act with regard to a bona fide tender offer or exchange offer or (B) from participating in negotiations or discussions with or furnishing information to any person in connection with a Transaction Proposal not solicited after the date hereof which is submitted in writing by such person to the Board of Directors of the Company after the date of this Agreement; provided, however, that prior to participating in any such discussions or negotiations or furnishing any information, the Company receives from such person an executed confidentiality agreement on terms not less favorable to the Company than the Confidentiality Agreement; and provided, further, that the Board of Directors of the Company shall have concluded in good faith, after consultation with its outside financial advisors, that such Transaction Proposal is reasonably likely to constitute a Superior Proposal (as defined below) and, after consultation with its outside legal counsel, that participating in such negotiations or discussions or furnishing such information is required in order to comply with its fiduciary duties to the stockholders of the Company under applicable law; and provided, further, that the Board of Directors of the Company shall not (unless it is prohibited from doing so by the terms of the Transaction Proposal), take any of the foregoing actions prior to two business days after it provides Holdings with prompt (but in no event later than 24 hours after the occurrence or commencement of such action) written notice thereof. If the Board of Directors of the Company receives a Transaction Proposal, then the Company shall, to the extent not prohibited in good faith by the terms of such Transaction Proposal, promptly inform Holdings of the terms and conditions of such proposal and the Stock Option Agreement)identity of the person making it. A The Company will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all 23 28 such information in the possession of any such party or in the possession of any agent or advisor of any such party. 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. "Significant SubsidiarySuperior Proposal" means any Subsidiary of a person that would constitute a Significant Subsidiary the transactions described in clause (i), (ii) or (iii) of the definition of Transaction Proposal (with all of the percentages included in the definition of such person within term raised to 51% for purposes of this definition) with respect to which the meaning Board of Rule 1-02 of Regulation S-X Directors of the Securities Company shall have concluded in good faith, after consultation with its outside legal counsel and Exchange Commission (financial advisors, is reasonably likely to be completed, taking into account all legal, financial, regulatory and other aspects of the "SEC").Transaction Proposal, including the status of the financing therefor, and the person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement, including the Merger. 6.11

No Solicitations. (a) From the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither it, nor any of its Subsidiaries, Affiliates or agents shallThe Company shall not, nor shall it permit any of its subsidiaries to, directly or indirectly, through any officer, director, employee or agent, initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its the officers, directors or employees of the Company or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it the Company or any of its Subsidiariessubsidiaries to take any such action. The Company shall notify Parent in writing (as promptly as practicable) if any written or oral request for information or proposal relating to a Competing Transaction is made and shall keep Parent promptly advised of all such requests and proposals, Affiliates and shall provide a copy of any written proposals or agents requests and a summary of all oral proposals or requests. Nothing contained in this Section 4.1(e) shall prohibit the Company from (i) furnishing information to, solicit, initiate or knowingly encourage the submission of, or enter entering into discussions or negotiations with or provide information to with, any person that makes an unsolicited written, bona fide proposal to acquire it pursuant to a merger, consolidation, share exchange, business combination, tender or group exchange offer or other similar transaction, if, (A) the failure to take such action would be inconsistent with the Board of persons Directors' fiduciary duties to the Company's stockholders under applicable law, and (other B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company (x) provides reasonable notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and (y) receives from such person an executed confidentiality agreement no less favorable to the Company than the respective parties to this Agreement) concerningConfidentiality Agreement between Parent and the Independent Advisor, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga the Company, dated June 4, 1999 (the "Confidentiality Agreement"), (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 5.2, or recommending an unsolicited, bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, following the receipt of such a proposal, if the failure to take such action would be inconsistent with the Board of Directors' fiduciary duties to the Company's stockholders under applicable law. In addition, if the Company proposes to enter into an agreement with respect to any of its Subsidiaries Competing Transaction, it shall concurrently with entering into such agreement pay, or otherwise, shall be deemed cause to be a breach of this paid, to Parent any amounts due to Parent from the Company pursuant to Section 5.4(a) by Saratoga7.3. As used in this Agreement, "Takeover ProposalCompeting Transaction" shall mean any inquiry, proposal of the following (other than the transactions contemplated by this Agreement) involving the Company or offer to acquire in any manner 20% or more of its subsidiaries: (i) any class of equity securities of, or a merger, consolidation, share exchange, exchange offer, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving such person; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets ofof such person and its subsidiaries, Saratoga in a single transaction or any Significant Subsidiary series of Saratoga, or transactions; (iii) any tender offer or exchange offer that if consummated would result in any person beneficially owning for 20% or more of any class the outstanding shares of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary capital stock of such person within or the meaning filing of Rule 1-02 a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired beneficial ownership of Regulation S-X 15% or more of the Securities and Exchange Commission outstanding shares of capital stock of such person with respect to Company Common Stock); or (v) any public announcement of a proposal, plan or intention to do any of the "SEC")foregoing or any agreement to engage in any of the foregoing.

No Solicitations. (a) From the date hereof of this Agreement until the earlier of the Effective Time or the termination of this AgreementAgreement or the Effective Time, Saratoga agrees that neither itIn Focus, Proxima nor any of its Subsidiaries, Affiliates or agents their Subsidiaries shall, nor shall it they authorize or permit any of its officersofficer, directors or employees or any director, employee, investment banker, financial advisor, attorney, accountant or other advisor or representative or agent (collectively, "Representatives") retained by it or acting for or on behalf of In Focus, Proxima or any of its Subsidiaries, Affiliates or agents their Subsidiaries to, directly or indirectly, (i) take any action to knowingly solicit, initiate or knowingly encourage the submission ofinitiate, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate incontinue, facilitate or encourage (including by way of furnishing or disclosing non-public information) any effort offer or attempt by any proposal for a merger, consolidation or other person to do or seek to do any of the foregoing. Without limiting the foregoingbusiness combination involving In Focus, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Proxima or any of its their Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% manner, directly or more indirectly, shares of any class of equity voting securities ofof In Focus, Proxima or any of their Subsidiaries (excluding, in the case of In Focus, proposals for the acquisition of shares constituting less than 20% of In Focus's outstanding voting securities) or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more substantial portion of the assets ofof In Focus, Saratoga Proxima or any Significant Subsidiary of Saratogatheir Subsidiaries, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means (any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the foregoing being referred to as an "SECAcquisition Proposal"), or (ii) engage in negotiations, discussions or communications regarding or disclose any information relating to In Focus, Proxima or any of their Subsidiaries or afford access to the properties, books or records of In Focus, Proxima or any of their Subsidiaries to any person, corporation, partnership or other entity or group (a "Potential Acquiror") that may be considering making, or has made, an Acquisition Proposal. The board of directors of Proxima (including any committee thereof) shall not withdraw or modify in a manner adverse to In Focus the approval and recommendation of the Exchange Offer or this Agreement. Neither the board of directors of In Focus or Proxima shall approve or recommend any Acquisition Proposal.

No Solicitations. (a) From Prior to the date hereof until Initial Closing, the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither itCompany will not take, nor will it permit any of its Subsidiaries, Affiliates (or agents shall, nor shall it authorize or permit any of its officersRepresentative) to take, directors directly or employees indirectly, any action to solicit, encourage, receive, negotiate, assist, accept or otherwise facilitate (including by furnishing confidential information with respect to the Company or the Subsidiaries or permitting access to their Assets and Properties and Books and Records), or take any investment bankerother action designed to facilitate or induce, financial advisorany offer, attorneyproposal or inquiry from any Person concerning an Acquisition Proposal, accountant or to participate in any discussions, negotiations and other representative communications regarding, or agent (collectively, "Representatives") retained by it or furnish to any of its Subsidiaries, Affiliates or agents other Person any information with respect to, solicit, initiate or knowingly encourage the submission of, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) execute or enter into any letter of intent, agreement with a third party in principle, merger agreement, acquisition agreement or other similar agreement relating to a Takeover Proposal any Acquisition Proposal, or assistotherwise cooperate in any way, assist or participate in, facilitate or encourage encourage, any effort or attempt by any other person Person to do or seek to do any of the foregoing or in any other way that is intended to or that would result in the abandonment of, termination of or failure to consummate, the transactions contemplated hereby. The Company shall, as promptly as practicable, cause each of its Affiliates and Representatives to immediately cease and cause to be terminated all existing discussions, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing. Without limiting The Company shall not, and shall cause its Affiliates not to, without the foregoingprior written consent of Purchaser, it is understood that release any violation of Person from, or waive any provision of, any confidentiality or non-disclosure agreement to which the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Company or any of its the Subsidiaries is a party that relates to any aspect of the assets or any investment banker, attorney or other advisor or Representative business of Saratoga the Company or any of the Subsidiaries, and shall cause its Subsidiaries and Affiliates to, use reasonable best efforts to enforce the provisions of any such agreement. Prior to the Initial Closing, the Company will promptly (but in no event later than forty-eight (48) hours) notify Purchaser in writing of (a) the receipt by the Company of any Acquisition Proposal, (b) any modification or Affiliatesamendment to any Acquisition Proposal, whether or not such Person is purporting (c) any request for nonpublic information relating to act on behalf of Saratoga the Company or any of its the Subsidiaries or otherwise, shall be deemed for access to be a breach the Assets and Properties and Books and Records of this Section 5.4(a) by Saratoga. As used the Company or any of the Subsidiaries in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more connection with the making of any class Acquisition Proposal. The Company shall promptly (but in no event later than forty-eight (48) hours) provide to Purchaser copies of equity securities ofany written materials received by the Company in connection with any such Acquisition Proposal or amendment to an Acquisition Proposal, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more and the identity of the assets ofPerson(s) making such Acquisition Proposal, Saratoga amendment to an Acquisition Proposal or so requesting access to any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")nonpublic information.

No Solicitations. (a) From the date hereof until Until the earlier of the Fourth Effective Time or and the date of termination of this AgreementAgreement pursuant to the provisions of Section 13.1, Saratoga agrees that neither it, nor none of the Selling Companies or any of its Subsidiaries, Affiliates or agents shall, their Subsidiaries shall take nor shall it authorize or the Selling Companies permit any of its the Selling Companies' or their Subsidiaries' directors, officers, directors employees, advisors, representatives or employees agents to take (directly or indirectly) any investment bankerof the following actions with any Person other than Parent and its designees: (i) solicit, financial advisorentertain, attorneyinitiate, accountant facilitate or other representative encourage any proposal or agent (collectivelyoffer from, "Representatives") retained by it or participate or engage in or conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Selling Companies or any of its Subsidiariestheir Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), Affiliates (ii) provide any information with respect to the Selling Companies or agents any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, solicit, initiate or knowingly encourage the submission of, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or otherwise assist, participate incooperate with, facilitate or encourage any effort or attempt by any other person to do or seek to do such Person with regard to, any possible Acquisition Proposal for any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any investment banker, attorney or Person other advisor or Representative of Saratoga than Parent providing for an Acquisition Proposal for the Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or Affiliatesis hereafter organized), whether (iv) make or not such Person is purporting to act on behalf authorize any statement, recommendation, solicitation or endorsement in support of Saratoga any possible Acquisition Proposal for the Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or otherwiseis hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, shall be deemed or (v) authorize or permit any of the Selling Companies' directors, officers, employees, advisors, representatives or agents to be take any such action; provided, however, that, at any time prior to the approval and adoption of this Agreement by the Stockholders, if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 5.4(a) by Saratoga. As used in this Agreement9.9, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant Selling Companies may furnish non-public information with respect to the transactions contemplated by this Agreement Selling Companies and their respective Subsidiaries to the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) the Selling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to do so would violate their fiduciary duties to the Stockholders under applicable Law, and (B) the Selling Companies Boards determine that such Acquisition Proposal is a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")Superior Proposal.

No Solicitations. (a) From The Company acknowledges that since December 6, 2004 it has complied with the date hereof until the earlier binding provisions of the Effective Time Letter of Intent. The Company shall not and shall cause its Subsidiaries to not, directly or the termination of this Agreementindirectly, Saratoga agrees that neither itthrough any officer, nor any of its Subsidiariesdirector, Affiliates employee, advisor, representative, agent or agents shall, nor shall it authorize or permit any of its officers, directors or employees or otherwise (including for greater certainty any investment banker, financial advisorlawyer or accountant), attorney(i) make, accountant solicit, initiate, encourage or otherwise facilitate (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) inquiries from or submissions of proposals or offers from any other representative or agent Person (collectively, "Representatives") retained by it or including any of its officers or employees) relating to any merger, amalgamation, arrangement, share exchange, take-over bid, tender offer, recapitalization, liquidation, dissolution, consolidation, recapitalization or business combination involving the Company or any Subsidiary, any substantial acquisition or sale of assets or assignment of contracts (or any lease, long-term supply agreement, exchange, mortgage, pledge or other arrangement having a similar economic effect) in a single transaction or a series of related transactions, any material purchase or sale of the equity of the Company or its Subsidiaries or rights thereto or interests therein or thereto (including from treasury), or any other kind of transaction such as an issuer bid that has the effect of increasing a Person's beneficial ownership interest of the equity of Company or its Subsidiaries, Affiliates or agents any bona fide proposal to, solicitor public announcement of an intention to, initiate do any of the foregoing excluding the transactions contemplated by this Agreement (such foregoing inquiries or knowingly encourage the submission of, or enter into proposals being referred to herein as an "ACQUISITION PROPOSAL"); (ii) participate in any discussions or negotiations with regarding, or provide information furnish to any person Person any information with respect to or group of persons (other than the respective parties to this Agreement) concerningotherwise co-operate in any way with, any Takeover Proposal (as defined below) respond to, assist or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person Person to do or seek to do any of the foregoing. Without limiting ; (iii) withdraw or modify in a manner adverse to Parent or the foregoing, it is understood that any violation Offeror the approval or recommendation of the restrictions set forth in Board of Directors of the transaction contemplated by this Agreement; (iv) approve or recommend any Acquisition Proposal; or (v) enter into any agreement, arrangement or understanding related to any Acquisition Proposal. Notwithstanding the preceding sentence by any director, officer or Affiliate of Saratoga nothing contained in this Section 5.2 or any other provision of its Subsidiaries this Agreement shall prevent the Board of Directors from considering, participating in any discussions or negotiations or entering into a confidentiality agreement and providing information pursuant to Section 5.2(d) (but, subject to Section 5.3, the Company shall not approve, recommend or enter into any investment bankerother agreement, attorney arrangement or other advisor or Representative understanding) regarding an unsolicited bona fide written Acquisition Proposal (i) that is not subject to a financing contingency and in respect of Saratoga or any of its Subsidiaries or Affiliateswhich adequate arrangements will have been made to ensure that the required funds will be available to effect payment in full for all Shares, whether or (ii) that did not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be otherwise result from a breach of this Section 5.4(a5.2, (iii) by Saratoga. As used that the Board of Directors has determined in this Agreementgood faith (after consultation with its financial advisors and with outside counsel) is reasonably capable of being completed, "Takeover Proposal" shall mean any inquirytaking into account all legal, financial, regulatory and other aspects of such proposal or offer to acquire in any manner 20% or more of any class of equity securities ofand the Person making the proposal and, or a mergerwould, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated in accordance with its terms as proposed, result in a transaction which is more favourable to Shareholders from a financial point of view than the Offer, (iv) that the Board of Directors has determined in good faith would result in any person beneficially owning 20% or more a Shareholder receiving a higher consideration per Share than is offered under the Offer, and (v) that the Board of any class Directors has concluded in good faith, after considering applicable Laws and receiving the advice of equity securities outside counsel that such action is required by the Board of Saratoga Directors to comply with fiduciary duties under applicable Laws (a "SUPERIOR PROPOSAL") nor shall anything contained in this Section 5.2 or any Significant Subsidiary other provision of Saratoga (other than pursuant to the transactions contemplated by this Agreement and require the Stock Option Agreement). A "Significant Subsidiary" means Company to cause any Subsidiary of its directors to take any action or refrain from taking any action that is required by a person that would constitute director to fulfill his fiduciary obligation under the CBCA as a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X director of the Securities and Exchange Commission (the "SEC")Company in connection with a Superior Proposal.

No Solicitations. (a) From and after the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither itthe Company shall not, nor and shall cause each of the Company Subsidiaries and its and their respective officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its the Company Subsidiaries) not to, Affiliates directly or agents shallindirectly, nor shall it invite, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), any inquiries or the making of any proposal that constitutes any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiations with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal or agree to or endorse any Acquisition Proposal, or authorize or permit any of its respective officers, directors or employees or any of the Company Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it or any of its Subsidiariesthe Company Subsidiaries to take any such action; provided, Affiliates or agents tohowever, solicit, initiate or knowingly encourage that nothing contained in this Section 6.04 shall prohibit the submission ofBoard, or enter into discussions any of the Company's financial advisors or negotiations attorneys, officers, directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or provide (ii) (A) providing information in response to any a request therefor by a person or group who has made an unsolicited bona fide written Acquisition Proposal if prior to providing such information the Board informs such person in writing of persons (other than the respective parties existence and the material terms of the Company Stockholders Agreement and receives from such person an executed confidentiality agreement on terms substantially equivalent to this Agreement) concerning, any Takeover Proposal those contained in the Confidentiality Agreement (as defined belowin Section 7.01); (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (A), (B) or enter into any agreement (C) above, the Board determines in good faith after consultation with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of independent legal counsel (who may be the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC").Company's regularly engaged legal

No Solicitations. (a) From the date hereof until the earlier to occur of the Effective Time or (a) the termination of this AgreementAgreement or (b) the Closing (such earlier date, Saratoga agrees that neither itthe “End Date”), nor any of the Company will not, and will instruct its Subsidiaries, Affiliates or agents shall, nor shall it authorize or permit and any Representative of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it the Company or any of its Subsidiaries, Subsidiaries or Affiliates or agents not to, solicitdirectly or indirectly, initiate or knowingly encourage the submission of(i) discuss, negotiate, undertake, authorize, recommend, propose or enter into discussions into, either as the proposed surviving, merged, acquiring or negotiations with acquired entity, any transaction involving a merger, consolidation, liquidation, recapitalization, business combination, purchase or provide information to disposition of any person or group material amount of persons the assets of the Company (other than the respective parties sale of assets in the ordinary course of business) or any of its Subsidiaries or any voting securities or other ownership interests in the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement (such other transaction, an “Acquisition Transaction”), (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction, (iii) furnish or cause to this Agreement) concerningbe furnished, to any Person or entity, any Takeover Proposal information concerning the business, operations, properties or assets of the Company or its Subsidiaries in connection with an Acquisition Transaction, or (as defined belowiv) otherwise cooperate in any way with, or enter into any agreement with a third party relating to a Takeover Proposal assist or assist, participate in, facilitate or encourage encourage, any effort or attempt by any other person Person to do or seek to do any of the foregoing. Without limiting From the foregoingdate hereof until the End Date, it is understood that the Company shall, and shall instruct its Subsidiaries, Affiliates and their Representatives to, immediately cease and cause to be terminated any violation existing discussions or negotiations with any Persons (other than Buyer and Merger Sub) conducted heretofore with respect to any Acquisition Transaction. The Company agrees not to (and to cause its Subsidiaries not to) release any third party from the confidentiality provisions of any agreement to which the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Company or any of its Subsidiaries or any investment bankeris a party prior to the End Date. Furthermore, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliatesprior to the End Date, whether or not such Person is purporting to act on behalf of Saratoga or any of its Subsidiaries or otherwise, the Company shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire promptly (and in any manner 20% or more event within two (2) Business Days after receipt thereof by the Company or, to the Company’s knowledge, its Representatives) advise Buyer orally and in writing of any class of equity securities ofAcquisition Transaction proposal, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratogarequest for information with respect to any Acquisition Transaction, or any tender offer inquiry with respect to a proposal for an Acquisition Transaction, the material terms and conditions of such request or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement inquiry and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X identity of the Securities Person making the same. The Company agrees that the rights and Exchange Commission (the "SEC")remedies for noncompliance with this Section 6.9 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer.

No Solicitations. During the period commencing on the date of execution of this Agreement and ending on the earlier of (a) From the Closing, (b) the date hereof until the earlier of the Effective Time or the termination of this AgreementAgreement pursuant to Section 12.01 and (c) the date on which any Governmental or Regulatory Authority or any third party whose approval or consent is required for the Issuer or any Purchaser to consummate the transactions contemplated by this Agreement or any other Principal Agreement gives written notice that such approval or consent will not be granted, Saratoga agrees that neither itthe Issuer will not take, nor any of its Subsidiaries, Affiliates will it permit VIP-R (or agents shall, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisoradviser, attorney, accountant or other representative or agent (collectively, "Representatives") Person retained by it or acting for or on behalf of the Issuer or VIP-R) to take, directly or indirectly, any action to accept any offer from any Strategic Investor (or any Person known by the Issuer to be acting on behalf of its Subsidiaries, Affiliates or agents to, solicit, initiate or knowingly encourage the submission ofany Strategic Investor) to engage in, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into reach any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any issuance of shares of VIP-R to such Strategic Investor or any merger or consolidation of VIP-R with such Strategic Investor, or any sale of all or substantially all of the assets of VIP-R to such Strategic Investor (each, a "Business Combination"). If the Issuer or VIP-R (or any Person is purporting to act acting on their behalf) receives from any Strategic Investor (or any Person acting on behalf of Saratoga any Strategic Investor) any offer, inquiry or information request with respect to a Business Combination with VIP-R, the Issuer shall promptly notify each Purchaser of such offer, inquiry or request and shall deliver a copy of such offer, inquiry or request to each Purchaser, provided that this Section 5.01 shall not apply to normal investor relations activities of the Issuer. Neither Purchaser shall, without the prior written consent of the Issuer, negotiate or discuss any such offer, inquiry or information request with any such Strategic Investor or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")third party.

No Solicitations. (a) From the date hereof until the earlier of the Effective Time or the termination of this Agreement, Saratoga agrees that neither it, nor any of its Subsidiaries, Affiliates or agents shallThe Company shall not, nor shall it permit any of its subsidiaries to, directly or indirectly, through any officer, director, employee or agent, initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its the officers, directors or employees of the Company or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative or agent (collectively, "Representatives") retained by it the Company or any of its Subsidiariessubsidiaries to take any such action. The Company shall notify Parent in writing (as promptly as practicable) if any written or oral request for information or proposal relating to a Competing Transaction is made and shall keep Parent promptly advised of all such requests and proposals, Affiliates and shall provide a copy of any written proposals or agents requests and a summary of all oral proposals or requests. Nothing contained in this Section 4.1(e) shall prohibit the Company from (i) furnishing information to, solicit, initiate or knowingly encourage the submission of, or enter entering into discussions or negotiations with or provide information to with, any person that makes an unsolicited written, bona fide proposal to acquire it pursuant to a merger, consolidation, share exchange, business combination, tender or group exchange offer or other similar transaction, if, (A) the failure to take such action would be inconsistent with the Board of persons Directors' fiduciary duties to the Company's stockholders under applicable law, and (other B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company (x) provides reasonable notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and (y) receives from such person an executed confidentiality agreement no less favorable to the Company than the respective parties to this Agreement) concerningConfidentiality Agreement between Parent and the Independent Advisor, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, whether or not such Person is purporting to act on behalf of Saratoga the Company, dated June 4, 1999 (the "Confidentiality Agreement"), (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, or (iii) failing to make or withdrawing or modifying its recommendation referred to in Section 5.2, or recommending an unsolicited, bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, following the receipt of such a proposal, if the failure to take such action would be inconsistent with the Board of Directors' fiduciary duties to the Company's stockholders under applicable law. In addition, if the Company proposes to enter into an agreement with respect to any of its Subsidiaries Competing Transaction, it shall concurrently with entering into such agreement pay, or otherwise, shall be deemed cause to be a breach of this paid, to Parent any amounts due to Parent from the Company pursuant to Section 5.4(a) by Saratoga7.3. As used in this Agreement, "Takeover ProposalCompeting Transaction" shall mean any inquiry, proposal of the following (other than --------------------- the transactions contemplated by this Agreement) involving the Company or offer to acquire in any manner 20% or more of its subsidiaries: (i) any class of equity securities of, or a merger, consolidation, share exchange, exchange offer, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving such person; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets ofof such person and its subsidiaries, Saratoga in a single transaction or any Significant Subsidiary series of Saratoga, or transactions; (iii) any tender offer or exchange offer that if consummated would result in any person beneficially owning for 20% or more of any class the outstanding shares of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary capital stock of such person within or the meaning filing of Rule 1-02 a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired beneficial ownership of Regulation S-X 15% or more of the Securities and Exchange Commission outstanding shares of capital stock of such person with respect to Company Common Stock); or (v) any public announcement of a proposal, plan or intention to do any of the "SEC")foregoing or any agreement to engage in any of the foregoing.

No Solicitations. During the period commencing on the date of execution of this Agreement and ending on the earlier of (a) From the Closing, (b) the date hereof until the earlier of the Effective Time or the termination of this AgreementAgreement pursuant to Section 12.01 and (c) the date on which any Governmental or Regulatory Authority or any third party whose approval or consent is required for the Issuer or any Purchaser to consummate the transactions contemplated by this Agreement or any other Principal Agreement gives written notice that such approval or consent will not be granted, Saratoga agrees that neither itthe Issuer will not take, nor any of its Subsidiaries, Affiliates will it permit VIP-R (or agents shall, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisoradviser, attorney, accountant or other representative or agent (collectively, "Representatives") Person retained by it or acting for or on behalf of the Issuer or VIP-R) to take, directly or indirectly, any action to accept any offer from any Strategic Investor (or any Person known by the Issuer to be acting on behalf of its Subsidiaries, Affiliates or agents to, solicit, initiate or knowingly encourage the submission ofany Strategic Investor) to engage in, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into reach any agreement with a third party relating to a Takeover Proposal or assist, participate in, facilitate or encourage any effort or attempt by any other person to do or seek to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga or any of its Subsidiaries or any investment banker, attorney or other advisor or Representative of Saratoga or any of its Subsidiaries or Affiliates, understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any issuance of shares of VIP-R to such Strategic Investor or any merger or consolidation of VIP-R with such Strategic Investor, or any sale of all or substantially all of the assets of VIP-R to 41 49 such Strategic Investor (each, a "Business Combination"). If the Issuer or VIP-R (or any Person is purporting to act acting on their behalf) receives from any Strategic Investor (or any Person acting on behalf of Saratoga any Strategic Investor) any offer, inquiry or information request with respect to a Business Combination with VIP-R, the Issuer shall promptly notify each Purchaser of such offer, inquiry or request and shall deliver a copy of such offer, inquiry or request to each Purchaser, provided that this Section 5.01 shall not apply to normal investor relations activities of the Issuer. Neither Purchaser shall, without the prior written consent of the Issuer, negotiate or discuss any such offer, inquiry or information request with any such Strategic Investor or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a) by Saratoga. As used in this Agreement, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant to the transactions contemplated by this Agreement and the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")third party.

No Solicitations. (a) From the date hereof until Until the earlier of the Fourth Effective Time or and the date of termination of this AgreementAgreement pursuant to the provisions of Section 13.1, Saratoga agrees that neither it, nor none of the Selling Companies or any of its Subsidiaries, Affiliates or agents shall, their Subsidiaries shall take nor shall it authorize or the Selling Companies permit any of its the Selling Companies’ or their Subsidiaries’ directors, officers, directors employees, advisors, representatives or employees agents to take (directly or indirectly) any investment bankerof the following actions with any Person other than Parent and its designees: (i) solicit, financial advisorentertain, attorneyinitiate, accountant facilitate or other representative encourage any proposal or agent (collectivelyoffer from, "Representatives") retained by it or participate or engage in or conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Selling Companies or any of its Subsidiariestheir Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), Affiliates (ii) provide any information with respect to the Selling Companies or agents any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, solicit, initiate or knowingly encourage the submission of, or enter into discussions or negotiations with or provide information to any person or group of persons (other than the respective parties to this Agreement) concerning, any Takeover Proposal (as defined below) or enter into any agreement with a third party relating to a Takeover Proposal or otherwise assist, participate incooperate with, facilitate or encourage any effort or attempt by any other person to do or seek to do such Person with regard to, any possible Acquisition Proposal for any of the foregoing. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or Affiliate of Saratoga Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any investment banker, attorney or Person other advisor or Representative of Saratoga than Parent providing for an Acquisition Proposal for the Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or Affiliatesis hereafter organized), whether (iv) make or not such Person is purporting to act on behalf authorize any statement, recommendation, solicitation or endorsement in support of Saratoga any possible Acquisition Proposal for the Selling Companies or any of its their Subsidiaries (whether such Subsidiary is in existence on the date hereof or otherwiseis hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, shall be deemed or (v) authorize or permit any of the Selling Companies’ directors, officers, employees, advisors, representatives or agents to be take any such action; provided, however, that, at any time prior to the approval and adoption of this Agreement by the Stockholders, if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 5.4(a) by Saratoga. As used in this Agreement9.9, "Takeover Proposal" shall mean any inquiry, proposal or offer to acquire in any manner 20% or more of any class of equity securities of, or a merger, consolidation, business combination, sale, recapitalization, liquidation, dissolution or other disposition or similar transaction involving 20% or more of the assets of, Saratoga or any Significant Subsidiary of Saratoga, or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of Saratoga or any Significant Subsidiary of Saratoga (other than pursuant Selling Companies may furnish non-public information with respect to the transactions contemplated by this Agreement Selling Companies and their respective Subsidiaries to the Stock Option Agreement). A "Significant Subsidiary" means any Subsidiary of Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) the Selling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to do so would violate their fiduciary duties to the Stockholders under applicable Law, and (B) the Selling Companies Boards determine that such Acquisition Proposal is a person that would constitute a Significant Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X of the Securities and Exchange Commission (the "SEC")Superior Proposal.