Common use of Other Offers Clause in Contracts

Other Offers. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.

Other Offers. (a) The During the period from the date of this Agreement to the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall will not, nor shall it permit any and will cause each of its Subsidiaries and their respective Representatives not to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or proposals from, discuss or negotiate with, provide any nonpublic information to, or consider the making merits of any proposal which constitutes unsolicited inquiries or reasonably may give rise proposals from, any Person (other than Acquiror) relating to any Takeover Proposal (as defined below) potential Acquisition Transaction involving the Company or (ii) participate in any discussions or negotiations regarding any Takeover ProposalAcquired Subsidiary. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (event that the "OFFER COMPLETION DATE"), the Board board of Directors directors of the Company determines in good faith, faith and after consultation with outside counsel legal counsel, that an Unsolicited Proposal, which does not result from a Breach of this Section 6.13, constitutes or is reasonably likely to result in a Superior Proposal and that failure to do so would pursue such Unsolicited Proposal is reasonably likely to result in a breach Breach of its fiduciary duties to under any Applicable Laws and Regulations, the Company's stockholders under applicable law, board of directors of the Company may, in response to a Superior Proposal so long as the Company complies at all times with its obligations under Section 6.13: (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (xa) furnish information with respect to the Company and its Subsidiaries to any person such Person making a Superior such Unsolicited Proposal pursuant to a customary confidentiality agreement agreement; (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (yb) participate in discussions or negotiations regarding such Unsolicited Proposal; and (c) terminate this Agreement in order to concurrently enter into an agreement with respect to such Unsolicited Proposal; provided, however, that the board of directors of the Company may not terminate this Agreement pursuant to this Section 6.13 unless and until: (x) five (5) Business Days have elapsed following the delivery to Acquiror of a written notice of such determination by the board of directors of the Company and during such five (5) Business-Day period, the Company otherwise cooperates with Acquiror with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected; and (y) at the end of such five (5) Business Day period the board of directors of the Company continues, in good faith and after consultation with outside legal counsel, to believe the Unsolicited Proposal at issue constitutes a Superior Proposal. The In addition to the foregoing obligations of the Company, its affiliates and their respective officers, directors, employees, representatives and agents the Company shall immediately cease all existing activitiesadvise Acquiror orally and in writing of any request for information or of any Unsolicited Proposal, the material terms and conditions of such request or Unsolicited Proposal and the identity of the Person making such request or Unsolicited Proposal. The Company shall keep Acquiror reasonably informed of the status and details (including amendments or proposed amendments) of any such request or Unsolicited Proposal, including the status of any discussions and or negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. Notwithstanding anything in this Agreement to the contrary, following the execution of this Agreement and prior to the time that the Company Stockholder Approval is obtained (a) The but in no event after the Company shall notStockholder Approval is obtained), nor shall it permit if the Company or its Representatives receive a written Acquisition Proposal from any Person that was not obtained in violation of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another personthis Section 6.03, (i) solicitthe Company shall notify Parent in writing as promptly as practicable (and in any event within 48 hours after the Company has knowledge thereof) of such Acquisition Proposal, initiate specifying the material terms and conditions thereof and the identity of the Person or encourage (including by way group of furnishing information)Persons making such proposal, offer, inquiry or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or contact and (ii) the Company and its Representatives may (A) contact such Person to clarify the terms and conditions thereof; (B) provide information (including non-public information concerning the Company and its Subsidiaries) in response to a request therefor by such Person, if and only if, prior to providing such information the Company enters into an Acceptable Confidentiality Agreement with such Person; provided that the Company shall concurrently provide to Parent any non-public information concerning the Company and its Subsidiaries that the Company is providing to any Person given such access which was not previously made available to Parent; and (C) engage or participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoingwith such Person, if and only if, at any time in each such case referred to in clause (B) or (C) above, prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), taking any such action the Board of Directors of the Company determines has (x) determined, in its good faithfaith judgment, after consultation with its financial advisor and outside legal counsel that failure such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable lawSuperior Proposal, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate provided written notice to Parent at least 48 hours prior to taking any such action, indicating, in discussions connection with such notice, the identity of the Person or negotiations regarding group of Persons making each such Superior Acquisition Proposal and including a written summary of the material terms and conditions of any such Acquisition Proposal that is not provided in writing and copies of any such written Acquisition Proposals, including proposed agreements that are provided in writing, and thereafter shall keep Parent reasonably informed, on a prompt basis (and in any event within 48 hours), of all significant developments relating to each such Acquisition Proposal. The Company, its affiliates Company shall provide Parent with a true and their respective officers, directors, employees, representatives and agents complete copy of each confidentiality agreement entered into pursuant to this Section 6.03 within 48 hours of the execution thereof. The Company shall immediately cease all existing activities, discussions and negotiations not enter into any confidentiality agreement with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding Person which prohibits the Company provided from complying with its obligations to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of Parent under this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSection 6.03.

Other Offers. (a) The Company shall immediately cease, and shall cause its subsidiaries and the Company's and its subsidiaries' respective directors, officers, employees, investment bankers, attorneys, accountants and other representatives to cease, any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal (as hereinafter defined) and demand in writing the return from all such Persons or the destruction of all copies of confidential information provided to such Persons by the Company or its representatives that are still in the possession of such Persons. The Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor shall it authorize or permit any of subsidiaries and the Company's and its subsidiaries' respective directors, officers or employees or any officers, employees, investment bankerbankers, financial advisorattorneys, attorney, accountant or accountants and other representative retained by it or any of its Subsidiaries representatives not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage the initiation of (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, information that has not been previously publicly disseminated) any inquiries or the making of any proposal which constitutes proposals that constitute, or may reasonably may give rise be expected to lead to, any Takeover Proposal (as defined below) or (ii) participate in any discussions with any third party regarding, or negotiations regarding furnish to any third party any non-public information with respect to, or assist or facilitate, any Takeover Proposal. Notwithstanding ; provided, however, that if the foregoing, if, at any time prior to the date Board of Directors of the Company purchases Shares receives an unsolicited, bona fide written Takeover Proposal that was made in the Offer (the "OFFER COMPLETION DATE"), circumstances not involving a breach of this Agreement and that the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to faith constitutes a Superior Proposal (as defined hereinafter defined), then the Company may (but only prior to the Purchase Date), in Section 6.04(b)) which was response to such Takeover Proposal and after providing Parent not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior less than 24 hours written notice of its decision intention to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c)actions, (xA) furnish to the Person making such Takeover Proposal information (including non-public information, provided that the Company shall use its best efforts to avoid providing information that may be competitively harmful to the Company, taking into consideration the identity of such Person) with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to Company, but only after such Person enters into a customary confidentiality agreement with the Company, provided that (as determined by 1) such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with the Company after consultation and (2) the Company advises Parent of all such non-public information delivered to such Person concurrently with its outside counsel) that is no less restrictive than delivery to such Person and concurrently with its delivery to such Person the Confidentiality Agreement Company delivers to Parent all such information not previously provided to Parent, and (yB) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with such Person regarding such Takeover Proposal. (b) In addition to the other obligations of the Company set forth in this Section, the Company shall promptly advise Parent, orally and in writing, and in no event later than 48 hours after receipt, if any parties conducted heretofore with proposal, offer, inquiry or other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company in respect to of any Takeover Proposal Proposal, and request shall, in any such notice to Parent, identify the return Person making such proposal, offer, inquiry or other contact and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a reasonably current basis, of all confidential information regarding material developments affecting the Company provided to any such parties prior to the date hereof pursuant to the status and terms of any confidentiality agreements such proposals, offers, inquiries or otherwise. requests and of the status of any such discussions or negotiations. (c) For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.:

Other Offers. (a) The Company shall and its Subsidiaries will not, nor and the Company will use its reasonable best efforts to cause the officers, directors, employees, investment bankers, consultants and other agents of the Company and its Subsidiaries not to, directly or indirectly, take any action to solicit, initiate, encourage or facilitate the making of any Acquisition Proposal (including without limitation by amending, or granting any waiver under, the Company Rights Agreement) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto, or disclose any non-public information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that has made, or to the Company's knowledge, is considering making, any Acquisition Proposal; provided that nothing contained in this Section 5.03 shall it permit any prevent the Company from furnishing non-public information to, or entering into discussions or negotiations with, or affording access to the properties, books or records of the Company or its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Person in connection with an unsolicited bona fide Acquisition Proposal received from such Person so long as prior to furnishing non-public information to, directly or indirectly through another personentering into discussions or negotiations with, such Person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company by a majority vote determines in its good faith, after consultation with outside counsel faith judgment that failure it is necessary to do so would result in a breach of to comply with its fiduciary duties duty to the Company's stockholders shareholders under applicable law, after receiving the advice of outside legal counsel, and (ii) the Company may, receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than those contained in response to a Superior Proposal the Confidentiality Agreement (as defined in Section 6.04(b7.03)) which was . Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of the Company shall not solicited by it or which did not otherwise result from recommend that the shareholders of the Company tender their shares in connection with a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect tender offer except to the extent the Board of Directors of the Company by a majority vote determines in its good faith judgment that such a recommendation is required to comply with the fiduciary duties of the Board of Directors of the Company to shareholders under applicable law, after receiving the advice of outside legal counsel. Unless the Board of Directors of the Company by a majority vote determines in its good faith judgment that it is necessary not to do so to comply with its fiduciary duty to shareholders under applicable law, after receiving the advice of outside legal counsel, the Company will (a) promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof) Acquiror after receipt of any Acquisition Proposal, any indication of which the Company has knowledge that any Person is considering making an Acquisition Proposal or any request for non-public information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company's knowledge may be considering making, an Acquisition Proposal, and (b) will keep Acquiror informed of the status and material terms of any such Acquisition Proposal or request. The Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by will, and the Company after consultation with will use its outside counsel) that is no less restrictive than reasonable best efforts to cause the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives investment bankers, consultants and other agents shall of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties negotiations, if any, that have taken place prior to the date hereof pursuant to the terms of with any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating parties with respect to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementAcquisition Proposal.

Other Offers. (a) The From the date hereof until the termination hereof, the Company shall not, nor shall it permit any of and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries will not (i) take any action to solicit, initiate or knowingly encourage inquiries or proposals that constitute, or reasonably would be expected to lead to, nor shall it authorize any Acquisition Proposal or permit (ii) engage in discussions or negotiations with, or disclose any of its directors, officers or employees nonpublic information relating to the Company or any investment bankerSubsidiary of the Company or afford access to the properties, financial advisorbooks or records of the Company or any Subsidiary of the Company to, attorney, accountant or other representative retained by it any Person (or any of its Subsidiaries agents or representatives) that the Company believes may be considering making, or has made, an Acquisition Proposal; provided that nothing contained in this Section 5.04 shall (A) prevent the Company from furnishing non-public information to, directly or indirectly through another personentering into discussions or negotiations with, any Person in connection with an unsolicited bona fide Acquisition Proposal received from such Person so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, (i1) solicitthe Company receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, initiate (2) the Board of Directors has reasonably concluded that such Acquisition Proposal constitutes a Superior Proposal and (3) the Company has otherwise complied with this Section 5.04 or encourage (including B)prevent the Company and its Subsidiaries from taking actions in the ordinary course of business consistent with past practice and not in connection with any Acquisition Proposal. The Company will notify Buyer as soon as possible, but in any event within 24 hours, after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by way of furnishing information)any Person that the Company believes may be considering making, or take any has made, an Acquisition Proposal. Such notice to Buyer shall indicate the identity of the Person making the Acquisition Proposal or request and in reasonable detail the terms thereof. If the financial or other action designed or reasonably likely to facilitate, any inquiries or the making material terms of any proposal which constitutes or reasonably may give rise to any Takeover such Acquisition Proposal (as defined below) or (ii) participate are modified in any material respect, then the Company shall notify Buyer as soon as possible, and in any event within 24 hours. The Company will immediately cease and cause its advisors and agents to cease any and all existing activities, discussions or negotiations regarding an Acquisition Proposal with any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date parties previously contacted; provided that the Company purchases Shares may inform such parties that this Agreement has been entered into and that the previously disclosed exploration of strategic alternatives process has been terminated. Nothing contained in the Offer (the "OFFER COMPLETION DATE"), this Agreement shall prohibit the Board of Directors of the Company determines from (i)taking and disclosing to the Companys shareholders a position with respect to a tender offer for the Shares by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, (ii) making such disclosure to the Companys shareholders as, in good faiththe judgment of the Board of Directors of the Company, after consultation based on the advice of outside counsel, is required under applicable law or under the rules of the NASDAQ Stock Market, or (iii) responding to any unsolicited proposal or inquiry solely by advising the person making such proposal or inquiry of the terms of this Section 5.04. From the date hereof until the termination hereof, the Company (i) shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement (other than any entered into in the ordinary course of business not in connection with outside counsel that failure any Acquisition Proposal and other than as permitted under the proviso to do so would result in a breach the first sentence of this Section 5.04) to which it or any of its fiduciary duties Subsidiaries is a party and (ii) shall enforce, to the Company's stockholders fullest extent permitted under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach provisions of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior agreement, including, without limitation, by seeking to the date hereof pursuant obtain injunctions to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer prevent breaches thereof that are known to it and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreementspecific performance thereof.

Other Offers. From the date hereof until the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (a) The Company shall not, nor shall it permit take any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) action to solicit, initiate or encourage (including by way of furnishing information)encourage, or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined belowhereinafter defined) or (iib) participate discuss or engage in negotiations with, or disclose any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior non-public information relating to the date Company or any Subsidiary of the Company purchases Shares or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in the Offer each of (the "OFFER COMPLETION DATE"a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors of the Company determines shall conclude in good faith, after consultation with outside counsel its legal and financial advisers, that failure such Acquisition Proposal, after taking into account whether it is reasonably likely to do so would result be financeable, is superior from a financial point of view to the terms of the transaction set forth in a breach of its fiduciary duties to this Agreement; and (3) the Company's stockholders under applicable lawBoard of Directors shall have determined, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) , that is no less restrictive than the Confidentiality Agreement and failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (y) participate in discussions or negotiations regarding such a "Superior Proposal"). The CompanyCompany will promptly notify Buyer after receipt of any Acquisition Proposal, its affiliates and their respective officersincluding a Superior Proposal, directorsor any indication that any person is considering making an Acquisition Proposal, employeesincluding a Superior Proposal, representatives and agents shall immediately cease all existing activities, discussions and negotiations with or any parties conducted heretofore with respect request for non-public information relating to any Takeover Proposal and request the return of all confidential information regarding the Company provided to or any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiariesor for access to the properties, taken as a whole, (w) direct books or indirect acquisition or purchase of 15% or more of any class of equity securities records of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets Subsidiary of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of by any class of equity securities of the Company or any of its SubsidiariesPerson that may be considering making, or (y) mergerhas made, consolidationan Acquisition Proposal, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.including a Superior Proposal,

Other Offers. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries From the date hereof until the Effective Time or the making earlier termination of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable lawthis Agreement, the Company maywill not, in response and will use its best efforts to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and cause its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall of the Company and its Subsidiaries not to, directly or indirectly, (i) take any action to solicit, to initiate, or knowingly to encourage any Company Acquisition Proposal (as defined below), (ii) take any action knowingly to facilitate (including, without limitation, amending the Company Rights Agreement other than as contemplated herein or redeeming the rights issued thereunder) any Company Acquisition Proposal, (iii) engage or participate in discussions or negotiations, or enter into agreements, with any Person with respect to a Company Acquisition Proposal, or (iv) in connection with a Company Acquisition Proposal, disclose any nonpublic 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; and further the Company agrees that it will immediately cease all and cause to be terminated any existing activities, discussions and or negotiations with any parties conducted heretofore with respect to any Takeover of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 5.03. Notwithstanding the foregoing, the Company may take the action described in clause (ii), (iii), or (iv) of the preceding sentence if (A) such action is taken in connection with an unsolicited Company Acquisition Proposal, (B) the Company's Board of Directors has determined, based on the written advice of its independent financial advisors, that such Company Acquisition Proposal would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transactions contemplated by this Agreement, (C) legal counsel to the Company has advised the Company's Board of Directors in writing that the failure to take such action would be a breach of the fiduciary duties of the Board of Directors under applicable law, and (D) in the case of the disclosure of nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, such information is covered by a confidentiality agreement that provides substantially the same or better protection to the Company as is afforded by the Confidentiality Agreement. The Company will immediately notify Parent orally and in writing of any Company Acquisition Proposal or any inquiries with respect thereto. Any such written notification will include the identity of the Person making such inquiry or Company Acquisition Proposal and request a description of the return material terms of all confidential information regarding such Company Acquisition Proposal (or the nature of the inquiry) and will indicate whether the Company provided is providing or intends to any such parties prior provide the person making the Company Acquisition Proposal with access to nonpublic information relating to the date hereof pursuant to the terms Company or any of any confidentiality agreements or otherwiseits Subsidiaries. For purposes of this Agreement, "TAKEOVER COMPANY ACQUISITION PROPOSAL" means any inquiry, good faith offer or proposal for (x) a merger or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of combination involving the Company or any of its Subsidiaries whose business constitutes 15% and any Person (other than Parent, Merger Sub, or more any other Subsidiary of the net revenues, net income either Parent or assets of the Company and its Subsidiaries, taken as a wholeMerger Sub), (xy) tender offer an acquisition by any Person (other than Parent, Merger Sub, or exchange offer for Shares any other Subsidiary of any class either Parent or Merger Sub) of equity securities assets or earning power of the Company or any of its Subsidiaries, in one or more transactions, representing 25% or more of the consolidated assets or earning power of the Company and its Subsidiaries, or (yz) mergeran acquisition by any Person (other than Parent, consolidationMerger Sub, business combination, recapitalization, liquidation, dissolution or similar transaction involving any other Subsidiary of either Parent or Merger Sub) of securities representing 20% or more of the voting power of the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSubsidiaries.

Other Offers. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Subsidiaries, and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements financial or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets legal advisors of the Company and its Subsidiaries, taken as a wholewill not, directly or indirectly, (wa) direct take any action to solicit, initiate or indirect acquisition encourage any Acquisition Proposal or purchase (b) engage in negotiations with, or disclose any nonpublic information relating to the Company or any of 15% its Subsidiaries or more of any class of equity securities afford access to the properties, books or records of the Company or any of its Subsidiaries whose business constitutes 15% to, any Person that may be considering making, or more has made, an Acquisition Proposal; provided that the Company may, in response to an unsolicited written proposal from a third party regarding an Acquisition Proposal, engage in the activities specified in clause (b) of this Section 6.5, if (i) the board of directors of the net revenuesCompany reasonably determines in good faith (after due consultation with outside legal counsel) that failure to do so would be inconsistent with its fiduciary duties and (ii) the Company has received from such third party an executed confidentiality agreement with confidentiality terms not materially less favorable to the Company than those contained in the confidentiality agreement dated as of April 6, net income 2003 between the Company and Parent. The Company will immediately notify Parent orally and will promptly (and in no event later than 24 hours after the relevant event) notify Parent in writing (which oral and written notices shall identify the Person making the Acquisition Proposal or assets request for information and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any Person who is considering making or has made an Acquisition Proposal. The Company will keep Parent fully and currently informed of the status and details of any such Acquisition Proposal or request and any related discussions or negotiations. The Company shall, and shall cause its Subsidiaries and directors, officers, employees and financial and legal advisors to, cease immediately and cause to be terminated all activities, discussions or negotiations, if any, with any Persons conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.5 shall prohibit the Company or its board of directors from taking and disclosing to the shareholders of the Company a position with respect to an Acquisition Proposal by a third party to the extent required by applicable law or from making such disclosure to the shareholders of the Company which, in the judgment of the outside counsel of the Company, is required under applicable law; provided that nothing in this sentence shall affect the obligations of the Company and its Subsidiariesboard of directors under any other provision of this Agreement. For purposes of this Agreement, taken as a whole“Acquisition Proposal” means any offer or proposal for, or any indication of interest in (w) an amalgamation, scheme of arrangement, merger or consolidation, or any similar transaction, involving the Company or any Subsidiary of the Company, (x) tender offer a purchase, lease or exchange offer for Shares other acquisition or assumption of any class all or a substantial portion of equity securities the assets or deposits of the Company or any of its Subsidiaries, or (y) a purchase or other acquisition (including by way of an amalgamation, scheme of arrangement, merger, consolidation, business combination, recapitalization, liquidation, dissolution share exchange or similar transaction involving otherwise) of beneficial ownership of securities representing 10% or more of the voting power of the Company or 25% or more of the voting power of any Subsidiary of its Subsidiaries other than the transactions contemplated by this AgreementCompany, or (z) any substantially similar transaction.

Other Offers. (a) The Company shall From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 9.01, Lucent and its Subsidiaries will not, nor shall it and Lucent will not permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, investment bankers, consultants, representatives and other agents of Lucent and its Subsidiaries to (and shall instruct such Persons not to), directly or indirectly, take any action to (a) solicit, initiate or knowingly encourage or facilitate the making of any Lucent Acquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations or enter into any agreement, arrangement or understanding with respect to a Lucent Acquisition Proposal, (b) disclose or provide any non-public information relating to Lucent or any Subsidiary of Lucent to any Person with respect thereto, (c) afford access to the properties, books or records of Lucent or any Subsidiary of Lucent to, any Person that has made, or to Lucent's knowledge, is considering making, any Lucent Acquisition Proposal, (d) approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other agreement relating to a Lucent Acquisition Proposal, or (e) propose publicly or agree to any of the foregoing relating to a Lucent Acquisition Proposal; provided that nothing contained in this Section 5.03 shall prevent Lucent, prior to the receipt of Lucent Stockholder Approval, from furnishing non-public information to, or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide written Lucent Acquisition Proposal received from such Person prior to the receipt of Lucent Stockholder Approval, so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, (i) the Board of Directors of Lucent by a majority vote determines in its good faith judgment that such Lucent Acquisition Proposal is reasonably expected to lead to a Lucent Superior Proposal (after consulting with its financial advisors), taking into account any revisions to the terms of the Merger or this Agreement proposed by Alcatel after being notified pursuant to this Section 5.03, (ii) Lucent is not then in breach of its obligations under this Section 5.03 and (iii) Lucent enters into, and receives from such Person, an executed confidentiality agreement on terms no less favorable to Lucent than those contained in the Confidentiality Agreement (as defined in Section 7.03). Nothing contained in this Agreement shall prevent the Board of Directors of Lucent from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with regard to a Lucent Acquisition Proposal; provided that Lucent shall not make any disclosure or take any action that amounts to a Lucent Change in Recommendation other than in compliance with Section 5.02. Lucent further agrees that it shall (a) promptly (and in no event later than 24 hours after receipt of any Lucent Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making such Lucent Acquisition Proposal and set forth the material terms thereof) Alcatel after receipt of any Lucent Acquisition Proposal, or any request for non-public information relating to Lucent or any Subsidiary of Lucent or for access to the properties, books or records of Lucent or any Subsidiary of Lucent by any Person that has made, or to Lucent's knowledge intends to make, a Lucent Acquisition Proposal, and (b) keep Alcatel informed of the status and material terms of any such Lucent Acquisition Proposal or request (including any material amendments or proposed material amendments). Lucent and its Subsidiaries will, and Lucent will cause the officers, directors, employees, investment bankers, consultants and other agents of Lucent and its Subsidiaries to, immediately cease and cause to be terminated all existing activities, discussions and negotiations negotiations, if any, that have taken place prior to the date of this Agreement with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementLucent Acquisition Proposal.

Other Offers. (a) The During the period from the date of this Agreement to the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall will not, nor shall it permit any and will cause each of its Subsidiaries and their respective Representatives not to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of proposals from, discuss or negotiate with, provide any proposal which constitutes or reasonably may give rise nonpublic information to, any Person (other than Acquiror) relating to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposalpotential Acquisition Transaction. Notwithstanding the foregoing, if, at any time prior to in the date event that the Company purchases Shares in the Offer Board (the "OFFER COMPLETION DATE"), the Board of Directors of the Company or applicable committee) determines in good faith, faith and after consultation with outside legal counsel that (a) an Unsolicited Proposal constitutes or is reasonably likely to result in a Superior Proposal and (b) the failure to do so would take any such action with respect to such Unsolicited Proposal is reasonably likely to result in a breach of its fiduciary duties to the Company's stockholders under any applicable lawLegal Requirement, the Company and its Representatives may, in response to a Superior Proposal : (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (xi) furnish information with respect to the Company and its Subsidiaries to any person such Person making a Superior such Unsolicited Proposal pursuant to a customary confidentiality agreement agreement; (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (yii) participate in discussions or negotiations regarding such Unsolicited Proposal; and (iii) terminate this Agreement in order to enter into an agreement with respect to such Unsolicited Proposal if, in the cause of clause (iii), the Company Board (or applicable committee) determines that such Unsolicited Proposal constitutes a Superior Proposal; provided, however, that the Company may not terminate this Agreement pursuant to this Section 5.5 unless and until (x) five (5) Business Days have elapsed following the delivery to Acquiror of a written notice of such determination by the Company Board (or applicable committee) and, during such five (5) Business-Day period, the Company engages in good faith negotiations with Acquiror (if Acquiror so desires) so that the Unsolicited Proposal ceases to constitute a Superior Proposal, and (y) at the end of such five (5) Business-Day period, the Company Board (or applicable committee) continues, in good faith and after consultation with outside legal counsel, to believe the Unsolicited Proposal at issue constitutes a Superior Proposal. The In addition to the foregoing obligations of the Company, its affiliates the Company shall promptly advise Acquiror orally and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with subsequently in writing of any parties conducted heretofore request for information with respect to any Takeover Unsolicited Proposal or the Company’s receipt of an Acquisition Proposal, the material terms and conditions of such request or Unsolicited Proposal and the identity of the Person making such request or Unsolicited Proposal. The Company shall keep Acquiror reasonably informed of the return status and material terms (including amendments or proposed amendments) of all confidential information regarding any such request or Unsolicited Proposal, including the Company provided status of any discussions or negotiations with respect to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. (a) The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Subsidiaries, and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements financial or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets legal advisors of the Company and its Subsidiaries, taken as a wholewill not, directly or indirectly, (wa) direct take any action to solicit, initiate or indirect acquisition encourage any Acquisition Proposal or purchase (b) engage in negotiations with, or disclose any nonpublic information relating to the Company or any of 15% its Subsidiaries or more of any class of equity securities afford access to the properties, books or records of the Company or any of its Subsidiaries whose business constitutes 15% to, any Person that may be considering making, or more has made, an Acquisition Proposal; provided that the Company may, in response to an unsolicited written proposal from a third party regarding an Acquisition Proposal engage in the activities specified in clause (b), if (i) in the opinion of the net revenuesCompany's outside counsel, net income or assets such action is required for the Board of Directors of the Company to comply with its fiduciary duties under applicable law and (ii) the Company has received from such third party an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in the Confidentiality Agreement. The Company will immediately notify Parent orally and will promptly (and in no event later than 24 hours after having received the relevant Acquisition Proposal) notify Parent in writing (which oral and written notices shall identify the Person making the Acquisition Proposal and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its SubsidiariesSubsidiaries or for access to the properties, taken as a whole, (x) tender offer books or exchange offer for Shares of any class of equity securities records of the Company or any of its Subsidiaries by any Person who is considering making or has made an Acquisition Proposal. The Company will keep Parent fully informed of the status and details of any such Acquisition Proposal or request and any related discussions or negotiations. The Company shall, and shall cause its Subsidiaries, and shall instruct the directors, officers and financial and legal advisors of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions or (y) mergernegotiations, consolidationif any, business combination, recapitalization, liquidation, dissolution or similar transaction involving with any Persons conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.4 shall prohibit the Company or its Board of Directors from taking and disclosing to the Company's stockholders a position with respect to an Acquisition Proposal by a third party to the extent required under the Exchange Act or from making such disclosure to the Company's stockholders which, in the judgment of the Company's outside counsel, is required under applicable law; provided that nothing in this sentence shall affect the obligations of the Company and its Board of Directors under any other provision of its Subsidiaries other than the transactions contemplated by this Agreement.

Other Offers. (a) The Company shall cease, and shall cause its Subsidiaries to cease and use its reasonable best efforts to cause the Company’s and its Subsidiaries’ respective directors, officers, employees, investment bankers and other representatives to cease, any discussions or negotiations with any Person that may be ongoing as of the date of this Agreement with respect to a Takeover Proposal. The Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor not to and shall it authorize or permit any of use its reasonable best efforts to cause the Company’s and its Subsidiaries’ respective directors, officers or employees or any officers, employees, investment banker, financial advisor, attorney, accountant or bankers and other representative retained by it or any of its Subsidiaries representatives not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or ) the making initiation of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions with any third party regarding, or negotiations regarding furnish to any third party any non-public information in connection with, any Takeover Proposal. Notwithstanding the foregoing, ifthe Board of Directors of the Company and its representatives may in any event (x) have discussions with any Person that has made an unsolicited Takeover Proposal solely in order to clarify and understand the terms and conditions of such proposal pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Joint Confidentiality Agreement (and the Company shall provide Parent and Purchaser with the same waivers of, at and modifications to, the Joint Confidentiality Agreement as those made available to any time prior other Person) if the Board of Directors of the Company, after consultation with its legal advisor, determines in good faith that it is necessary to take such action to comply with its fiduciary duties under applicable Law, and (y) if the Board of Directors of the Company receives an unsolicited Takeover Proposal that the Board of Directors of the Company, after consulting with its legal advisor and with its financial advisor, determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, then the Company may (A) furnish non-public information to the date Person making such Takeover Proposal and (B) participate in discussions and negotiations with such Person regarding a Takeover Proposal, in each case pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Joint Confidentiality Agreement (and the Company purchases Shares shall provide Parent and Purchaser with the same waivers of, and modifications to, the Joint Confidentiality Agreement as those made available to any other Person). (b) Except as expressly permitted by this Section 5.2(b), neither the Board of Directors of the Company nor any committee thereof shall (i)(A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the Offer determination by such Board of Directors described in clause (i) of Section 3.3(b), the "OFFER COMPLETION DATE"approval by such Board of Directors described in clause (ii) of Section 3.3(b) or the recommendation by such Board of Directors described in clause (iii) of Section 3.3(b), or (B) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal or (ii) cause or authorize the Company or any of its Subsidiaries to enter into any contract or agreement (other than a confidentiality agreement) with respect to a Takeover Proposal (a “Company Acquisition Agreement”). Notwithstanding the foregoing the Board of Directors of the Company may (i) withdraw or modify its determination described in clause (i) of Section 3.3(b); (ii) withdraw or modify the approval of the Board of Directors described in clause (ii) of Section 3.3(b); and (iii) withdraw or modify its recommendation described in clause (iii) of Section 3.3(b) if the Board determines in good faith, after reviewing applicable provisions of state law and after consulting with its legal advisor, that such action is necessary for the Board of Directors to comply with its fiduciary duties under applicable Law. In addition, subject to compliance with the Company’s obligations under Section 5.2(a), if the Board of Directors of the Company receives a Takeover Proposal that it determines in good faith, after consultation with its legal advisor and its financial advisor, constitutes a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, the Board of Directors of the Company determines in good faithmay enter into a Company Acquisition Agreement with respect to such Superior Proposal if (I) the Company provides written notice to Parent, after consultation with outside counsel that failure to do so would result in a breach which notice must be received by Parent at least five Business Days (inclusive of its fiduciary duties the day of receipt by Parent of such notice) prior to the Company's stockholders under applicable law, time it intends to cause the Company mayto enter into such Company Acquisition Agreement, in response to advising Parent that the Board of Directors of the Company has received a Takeover Proposal which it believes constitutes a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from and intends to accept and, with respect to which, enter into a breach Company Acquisition Agreement, subject to the provisions of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c5.2(b), providing a copy of any written offer or proposal describing the Superior Proposal and identifying the Person making such Superior Proposal, (xII) furnish information as of the end of such five (5) Business Day period referenced above, Parent shall have failed to revise the terms of the Offer and the Merger to an extent necessary to cause the Board of Directors to change its determination that such Takeover Proposal continues to be a Superior Proposal, and (III) the Company terminates this Agreement pursuant to Section 7.1(c)(ii) within three Business Days after the lapse of the five (5) Business Day period referenced above, concurrently enters into a Company Acquisition Agreement with respect to the Company and its Subsidiaries to any person making a such Superior Proposal pursuant and pays the Termination Fee to a customary confidentiality agreement Parent in accordance with Section 7.3. (as determined by the Company after consultation with its outside counselc) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.:

Other Offers. (a) The Company and its Subsidiaries will not and the Company will use its reasonable best efforts to cause the officers, directors, agents, representatives or advisors of the Company and its Subsidiaries not to, directly or indirectly, take any action to solicit, initiate, encourage or knowingly facilitate the making of any Acquisition Proposal or any inquiry with respect thereto or engage in negotiations with any Person with respect thereto, or disclose any non-public information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that has made, or to the Company’s knowledge, is considering making, any Acquisition Proposal, provided that nothing contained in this Section 5.04 shall notprevent the Company from furnishing non-public information to, nor shall it permit any or entering into negotiations with, or affording access to the properties, books or records of the Company or its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Person in connection with an unsolicited bona fide Acquisition Proposal received from such Person so long as prior to furnishing non-public information to, directly or indirectly through another personentering into negotiations with, such Person, (i) solicit, initiate or encourage (including by way the Special Committee of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company by a majority vote determines in its good faithfaith judgment that it is necessary to do so to comply with its fiduciary duty to shareholders under applicable law, after consultation with outside counsel legal counsel, and (ii) the Company receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement between the Company and DLJ Merchant Banking II, Inc. referred to in Section 6.02. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal. Unless the Special Committee of the Board of Directors of the Company by a majority vote determines in its good faith judgment that failure it is necessary not to do so would result in a breach of to comply with its fiduciary duties duty to the Company's stockholders under applicable law, after consultation with outside legal counsel, the Company may, will (a) promptly (and in response to a Superior no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal (as defined in Section 6.04(b)and set forth the material terms thereof) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), Merger Sub of: (x) furnish the receipt of any Acquisition Proposal, (y) any indication, of which the Company has knowledge, that any Person is considering making an Acquisition Proposal or (z) any request for non-public information with respect relating to the Company and its Subsidiaries to or any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiariesor for access to the properties, taken as a whole, (w) direct books or indirect acquisition or purchase of 15% or more of any class of equity securities records of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets Subsidiary of the Company by any Person that has made, or to the Company’s knowledge may be considering making, an Acquisition Proposal, and its Subsidiaries, taken as a whole, (xb) tender offer or exchange offer for Shares will keep Merger Sub informed of the status and material terms of any class of equity securities of the Company such Acquisition Proposal or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.request. The

Other Offers. (a) The Company shall cease, and shall cause its subsidiaries to cease and use its reasonable best efforts to cause the Company's and its subsidiaries' respective directors, officers, employees, investment bankers and other representatives to cease, any discussions or negotiations with any Person that may be ongoing as of the date of this Agreement with respect to a Takeover Proposal. The Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor subsidiaries not to and shall it authorize or permit any of use its reasonable best efforts to cause the Company's and its subsidiaries' respective directors, officers or employees or any officers, employees, investment banker, financial advisor, attorney, accountant or bankers and other representative retained by it or any of its Subsidiaries representatives not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or ) the making initiation of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions with any third party regarding, or negotiations regarding furnish to any third party any non-public information in connection with, any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines and its representatives may in good faithany event (x) have discussions with any Person that has made an unsolicited Takeover Proposal solely in order to clarify and understand the terms and conditions of such proposal pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement (and the Company shall provide Parent and Purchaser with the same waivers of, and modifications to, the Confidentiality Agreement as those made available to any other Person) if the Board of Directors of the Company, after consultation with outside counsel a legal advisor of national reputation, determines in good faith that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision is necessary to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation comply with its outside counsel) that is no less restrictive than the Confidentiality Agreement fiduciary duties under applicable Law, and (y) if the Board of Directors of the Company receives an unsolicited Takeover Proposal that the Board of Directors of the Company, after consulting with a legal advisor of national reputation and with a financial advisor of national reputation, determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, then the Company may (A) furnish non-public information to the Person making such Takeover Proposal and (B) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with such Person regarding a Takeover Proposal, in each case pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement (and the Company shall provide Parent and Purchaser with the same waivers of, and modifications to, the Confidentiality Agreement as those made available to any parties conducted heretofore with respect other Person). (b) Except as expressly permitted by this Section 5.2(b), neither the Board of Directors of the Company nor any committee thereof shall (i)(A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval by such Board of Directors described in clause (ii) of Section 3.3(b) or the recommendation by such Board of Directors described in clause (iii) of Section 3.3(b) or (B) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal (ii) cause or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of authorize the Company or any of its Subsidiaries whose business constitutes 15% subsidiaries to enter into any contract or more agreement (other than a confidentiality agreement) with respect to a Takeover Proposal (a "Company Acquisition Agreement"). Notwithstanding the foregoing the Board of the net revenues, net income or assets Directors of the Company and may withdraw or modify its Subsidiaries, taken as a whole, recommendation described in clause (xii) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.Section 3.3

Other Offers. (a) The Until the earlier to occur of the Closing or the termination of this Agreement pursuant to Article 11, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, will not directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or proposals from, discuss or negotiate with, provide any non-public information to, or consider the making merits of any proposal which constitutes unsolicited inquiries or reasonably may give rise proposals from, any Person (other than Acquiror) relating to any Takeover Proposal (as defined below) Acquisition Transaction or (ii) participate a potential Acquisition Transaction involving the Company. Notwithstanding such foregoing restriction, the Company may provide information at the request of, or enter into negotiations with, a third party with respect to an Acquisition Transaction if the board of directors of the Company determines, in good faith, after consultation with its legal counsel, that the taking of such actions is reasonably necessary for it to comply with its fiduciary duties to the Shareholders under applicable law, and, provided further, that the Company may not, in any discussions event, provide to such third party any information which it has not provided (or negotiations regarding does not simultaneously provide) to Acquiror. The Company shall promptly notify Acquiror orally and in writing in the event it receives any Takeover Proposalsuch inquiry or proposal and shall provide reasonable detail of all relevant facts relating to such inquiries. Nothing contained in this Agreement shall prevent the Company or the board of directors of the Company from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Transaction, provided that such Rules will in no way eliminate or modify the effect that any action pursuant to such Rules would otherwise have under this Agreement. (b) Notwithstanding the foregoing, ifforegoing in Section 6.6(a), at any time prior to the date approval of this Agreement by the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE")Company’s shareholders, the Board board of Directors directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior bona fide unsolicited written Acquisition Proposal that the Company received (as defined in Section 6.04(b)) which was not solicited by it or which and that did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE"6.6) and compliance with that fulfilled the requirements contained in Section 6.04(c6.6(a), (xtake any of the actions otherwise prohibited by Section 6.6(a) furnish information with respect to such Acquisition Proposal after the fifth (5th) Business Day following the submission to Acquiror of a notice (the “Notice of Acquisition Proposal”) from the Company advising Acquiror of such Acquisition Proposal, if at the end of such five (5) Business Day period, after taking into account any such adjusted, modified or amended terms as may have been committed to in writing by Acquiror since its receipt of such Notice of Acquisition Proposal (provided, however, that Acquiror shall not have any obligation to propose any adjustments, modifications or amendments to the terms and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by conditions of this Agreement), the board of directors of the Company has reasonably determined in good faith, after consultation with its outside legal counsel) , that the taking of such actions is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, necessary to comply with its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior fiduciary duties to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementShareholders under applicable law.

Other Offers. (a) The Company shall notNotwithstanding anything contrary in this Agreement, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, if at any time prior to obtaining Stockholder Approval (and in no event after obtaining Stockholder Approval), (i) the Board receives a bona fide written acquisition proposal made after the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), hereof that the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside counsel that failure legal counsel, is or is reasonably likely to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response lead to a superior proposal (a “Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE"Proposal”) and compliance with Section 6.04(c)(ii) the Board determines in good faith, (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) , that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding failure to take such Superior Proposal. The Companyaction would be reasonably likely to be inconsistent with its fiduciary duties under applicable law, its affiliates and their respective officersthen the Board, directorsmay, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations subject to compliance with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry(A) engage in negotiations or discussions with such third party and its representatives, proposal (B) furnish to such third party or offer from any person other than the Buyer and Merger Subsidiary its representatives non-public information relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more subsidiaries pursuant to a confidentiality agreement, a copy of which shall be provided, promptly after its execution, to the net revenues, net income or assets of Purchasers for informational purposes; provided that the Company shall promptly provide to the Purchasers any such information that is provided to any such Person which was not previously provided to or made available to the Purchasers and its Subsidiaries, taken as (C) following receipt of a wholeSuperior Proposal after the date of this Agreement, (x) tender offer choose not to make, withdraw or exchange offer for Shares of any class of equity securities modify a prior recommendation of the Company Board in a manner adverse to the Purchasers, (y) choose not to make or any of its Subsidiariesinclude a recommendation as specified in Section 4.3(a) in the proxy statements, or (yC) mergerrecommend, consolidationadopt or approve or publicly propose to recommend, business combinationadopt or approve such Superior Proposal. (b) Notwithstanding anything contrary in this Agreement, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than this Agreement may be terminated and the transactions contemplated hereby may be abandoned by this Agreementthe Company at any time prior to the Closing by the Company if the Board has determined to enter into a written agreement to accept a Superior Proposal.

Other Offers. (a) The Company shall cease, and shall cause its Subsidiaries to cease and use its reasonable best efforts to cause the Company's and its Subsidiaries' respective directors, officers, employees, investment bankers and other representatives to cease, any discussions or negotiations with any Person that may be ongoing as of the date of this Agreement with respect to a Takeover Proposal. The Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor not to and shall it authorize or permit any of use its reasonable best efforts to cause the Company's and its Subsidiaries' respective directors, officers or employees or any officers, employees, investment banker, financial advisor, attorney, accountant or bankers and other representative retained by it or any of its Subsidiaries representatives not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or ) the making initiation of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions with any third party regarding, or negotiations regarding furnish to any third party any non-public information in connection with, any Takeover Proposal. Notwithstanding the foregoing, ifthe Board of Directors of the Company and its representatives may in any event (x) have discussions with any Person that has made an unsolicited Takeover Proposal solely in order to clarify and understand the terms and conditions of such proposal pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Joint Confidentiality Agreement (and the Company shall provide Parent and Purchaser with the same waivers of, at and modifications to, the Joint Confidentiality Agreement as those made available to any time prior other Person) if the Board of Directors of the Company, after consultation with its legal advisor, determines in good faith that it is necessary to take such action to comply with its fiduciary duties under applicable Law, and (y) if the Board of Directors of the Company receives an unsolicited Takeover Proposal that the Board of Directors of the Company, after consulting with its legal advisor and with its financial advisor, determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, then the Company may (A) furnish non-public information to the date Person making such Takeover Proposal and (B) participate in discussions and negotiations with such Person regarding a Takeover Proposal, in each case pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Joint Confidentiality Agreement (and the Company purchases Shares shall provide Parent and Purchaser with the same waivers of, and modifications to, the Joint Confidentiality Agreement as those made available to any other Person). (b) Except as expressly permitted by this Section 5.2(b), neither the Board of Directors of the Company nor any committee thereof shall (i)(A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the Offer determination by such Board of Directors described in clause (i) of Section 3.3(b), the approval by such Board of Directors described in clause (ii) of Section 3.3(b) or the recommendation by such Board of Directors described in clause (iii) of Section 3.3(b), or (B) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal or (ii) cause or authorize the Company or any of its Subsidiaries to enter into any contract or agreement (other than a confidentiality agreement) with respect to a Takeover Proposal (a "OFFER COMPLETION DATECompany Acquisition Agreement"). Notwithstanding the foregoing the Board of Directors of the Company may (i) withdraw or modify its determination described in clause (i) of Section 3.3(b); (ii) withdraw or modify the approval of the Board of Directors described in clause (ii) of Section 3.3(b); and (iii) withdraw or modify its recommendation described in clause (iii) of Section 3.3(b) if the Board determines in good faith, after reviewing applicable provisions of state law and after consulting with its legal advisor, that such action is necessary for the Board of Directors to comply with its fiduciary duties under applicable Law. In addition, subject to compliance with the Company's obligations under Section 5.2(a), if the Board of Directors of the Company receives a Takeover Proposal that it determines in good faith, after consultation with its legal advisor and its financial advisor, constitutes a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, the Board of Directors of the Company determines in good faithmay enter into a Company Acquisition Agreement with respect to such Superior Proposal if (I) the Company provides written notice to Parent, after consultation with outside counsel that failure to do so would result in a breach which notice must be received by Parent at least five Business Days (inclusive of its fiduciary duties the day of receipt by Parent of such notice) prior to the Company's stockholders under applicable law, time it intends to cause the Company mayto enter into such Company Acquisition Agreement, in response to advising Parent that the Board of Directors of the Company has received a Takeover Proposal which it believes constitutes a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from and intends to accept and, with respect to which, enter into a breach Company Acquisition Agreement, subject to the provisions of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c5.2(b), providing a copy of any written offer or proposal describing the Superior Proposal and identifying the Person making such Superior Proposal, (xII) furnish information as of the end of such five (5) Business Day period referenced above, Parent shall have failed to revise the terms of the Offer and the Merger to an extent necessary to cause the Board of Directors to change its determination that such Takeover Proposal continues to be a Superior Proposal, and (III) the Company terminates this Agreement pursuant to Section 7.1(c)(ii) within three Business Days after the lapse of the five (5) Business Day period referenced above, concurrently enters into a Company Acquisition Agreement with respect to the Company and its Subsidiaries to any person making a such Superior Proposal pursuant and pays the Termination Fee to a customary confidentiality agreement Parent in accordance with Section 7.3. (as determined by the Company after consultation with its outside counselc) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.:

Other Offers. The Company and its Subsidiaries will not, directly or indirectly, and will use their reasonable best efforts to cause their Representatives not to (a) The Company shall not, nor shall it permit take any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) action to solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined below) or (iib) participate engage in negotiations with, or disclose any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior nonpublic information relating to the date Company or any of its Subsidiaries or afford access to the properties, books or records of the Company purchases Shares or any of its Subsidiaries to, any person that may, to the Company's Knowledge, be considering making, or has made, an Acquisition Proposal; provided that the Company may, in response to an unsolicited bona fide written proposal from a third party regarding an Acquisition Proposal, engage in the Offer activities specified in clause (the "OFFER COMPLETION DATE")b) of this Section 6.04, if (i) following consultation with outside counsel, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with outside counsel faith that failure to do so would be reasonably likely to constitute or result in a breach of its fiduciary duties under applicable law, (ii) following consultation with the Special Committee Financial Advisor, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) determines in good faith that such Acquisition Proposal constitutes or has a reasonable likelihood of resulting in a Superior Proposal, and (iii) the Company has received from such third party an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in Section 6.03. The Company will as promptly as practicable (and in no event later than one business day after the relevant event) notify Parent in writing (which notice shall identify the person making the Acquisition Proposal or request for information and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any person who is, to the Company's stockholders under applicable lawKnowledge, considering making or has made an Acquisition Proposal. The Company will keep Parent currently informed of the Company may, in response to a Superior status and material developments and terms of any such Acquisition Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 request and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the any related material discussions or negotiations. The Company and its Subsidiaries shall, and shall use their reasonable best efforts to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and cause their respective officersRepresentatives to, directors, employees, representatives cease immediately and agents shall immediately cease cause to be terminated all existing activities, discussions and negotiations or negotiations, if any, with any parties persons conducted heretofore with respect to any Takeover Proposal Acquisition Proposal. Nothing in this Section 6.04 shall prohibit the Company, its Board of Directors or the Special Committee from taking and request disclosing to the return stockholders of all confidential information regarding the Company provided a position with respect to any such parties prior an Acquisition Proposal by a third party to the date hereof pursuant extent required under the Exchange Act or from making such disclosure to the terms stockholders of the Company which, after consultation with outside counsel of the Company, the Special Committee (or the Board of Directors of the Company acting upon the recommendation of the Special Committee) determines is required under applicable law; provided that nothing in this sentence shall affect the obligations of the Company, its Board of Directors or the Special Committee under any confidentiality agreements or otherwiseother provision of this Agreement. For purposes of this Agreement, "TAKEOVER PROPOSALAcquisition Proposal" means any inquiry, offer or proposal or offer from any person (other than an offer or proposal by or on behalf of Parent or its affiliates) for, or any indication of interest in (w) a merger or consolidation, or any similar transaction, involving the Buyer and Merger Company or any Significant Subsidiary relating to any of the Company, (vx) direct a purchase, lease or indirect other acquisition or assumption of all or substantially all of the assets of the Company or all or substantially all of the assets or deposits of any Significant Subsidiary of the Company, (y) a purchase or other acquisition (including by way of a business that constitutes 15merger, consolidation, share exchange, tender offer or otherwise) of beneficial ownership (the term "beneficial ownership" for purposes of this Agreement having the meaning assigned thereto in Section 13(d) of the Exchange Act, and the rules and regulations thereunder) of securities representing 25% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities voting power of the Company or any of its Subsidiaries whose business constitutes 1525% or more of the net revenues, net income or assets voting power of any Significant Subsidiary of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its SubsidiariesCompany, or (yz) merger, consolidation, business combination, recapitalization, liquidation, dissolution or any substantially similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreementtransaction.

Other Offers. From the date hereof until the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (a) The Company shall not, nor shall it permit take any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) action to solicit, initiate or encourage (including by way of furnishing information)encourage, or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined belowhereinafter defined) or (iib) participate discuss or engage in negotiations with, or disclose any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior non-public information relating to the date Company or any Subsidiary of the Company purchases Shares or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in the Offer each of (the "OFFER COMPLETION DATE"a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors of the Company determines shall conclude in good faith, after consultation with outside counsel its legal and financial advisers, that failure such Acquisition Proposal, after taking into account whether it is reasonably likely to do so would result be financeable, is superior from a financial point of view to the terms of the transaction set forth in a breach of its fiduciary duties to this Agreement; and (3) the Company's stockholders under applicable lawBoard of Directors shall have determined, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) , that is no less restrictive than the Confidentiality Agreement and failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (y) participate in discussions or negotiations regarding such a "Superior Proposal"). The CompanyCompany will promptly notify Buyer after receipt of any Acquisition Proposal, its affiliates and their respective officersincluding a Superior Proposal, directorsor any indication that any person is considering making an Acquisition Proposal, employeesincluding a Superior Proposal, representatives and agents shall immediately cease all existing activities, discussions and negotiations with or any parties conducted heretofore with respect request for non-public information relating to any Takeover Proposal and request the return of all confidential information regarding the Company provided to or any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiariesor for access to the properties, taken as a whole, (w) direct books or indirect acquisition or purchase of 15% or more of any class of equity securities records of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets Subsidiary of the Company and its Subsidiariesby any Person that may be considering making, taken as or has made, an Acquisition Proposal, including a wholeSuperior Proposal, (x) tender offer or exchange offer for Shares of any class of equity securities including the terms thereof and the identity of the Company or any third party) and will keep Buyer fully informed of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any status and details of its Subsidiaries other than the transactions contemplated by this Agreement.- 33 -

Other Offers. (a) The No Acquired Corporation Company shall not, nor shall it permit any of its Subsidiaries toshall, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Representatives to, directly or indirectly through another person, (iA) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of furnishing information)B) participate in any discussions or negotiations regarding, or furnish to any Person or "Group" (as such term is defined in Section 13(d) under the 0000 Xxx) any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate, facilitate any inquiries or the making of any proposal which that constitutes or may reasonably may give rise be expected to lead to, any Acquisition Proposal, (C) subject to Section 6.2(c)(i), approve, endorse or recommend any Acquisition Proposal, or (D) enter into any Contract contemplating or otherwise relating to any Takeover Proposal (as defined belowAcquisition Transaction; provided however, that this Section 6.2(c)(ii) shall not prohibit an Acquired Corporation Company from furnishing nonpublic information regarding any Acquired Corporation Company to, or (ii) participate in any entering into a confidentiality agreement or discussions or negotiations regarding with, any Takeover Proposal. Notwithstanding Person or Group in response to a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (and not withdrawn) if (I) no Acquired Corporation Company or Representative thereof shall have violated any of the foregoing, if, at any time prior to the date the Company purchases Shares restrictions set forth in the Offer (the "OFFER COMPLETION DATE"this Section 6.2(c)(ii), (II) the Board of Directors of Acquired Corporation determines in its good faith judgment (based on, among other things, the Company determines advice of Acquired Corporation's financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (III) the Board of Directors of Acquired Corporation concludes in good faith, after consultation with its outside counsel legal counsel, that the failure to do so take such action would result in a breach of be inconsistent with its fiduciary duties, as such duties to would exist in the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach absence of this Section 6.04 6.2(c)(ii), to the stockholders of Acquired Corporation under applicable Law, (IV) (x) at least five business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Acquired Corporation gives Buyer written notice of the identity of such Person or Group and subject of Acquired Corporation's intention to providing furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group, and (y) Acquired Corporation receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing Party than the terms of the confidentiality agreement between Acquired Corporation and Buyer and (V) contemporaneously with furnishing any such nonpublic information to such Person or Group, Acquired Corporation furnishes such nonpublic information to Buyer (to the extent such nonpublic information has not been previously furnished by Acquired Corporation to Buyer). In addition to the foregoing, Acquired Corporation shall provide Buyer with at least five business days' prior written notice of its decision a meeting of the Board of Directors of Acquired Corporation at which meeting the Board of Directors of Acquired Corporation is reasonably expected to take such action resolve to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making recommend a Superior Proposal pursuant to its stockholders and together with such notice a customary confidentiality agreement (as determined by copy of the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding most recently proposed documentation relating to such Superior Proposal. The Company, its affiliates ; provided further that Acquired Corporation hereby agrees promptly to provide to Buyer any revised documentation and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations any Contract entered into in connection with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. (a) The From the date hereof until the termination hereof, the Company and its Subsidiaries shall not, nor and the Company shall it permit any use its reasonable best efforts to cause the officers, directors, key employees, financial advisors or other agents or representatives of the Company and its Subsidiaries not to, nor shall it authorize directly or permit indirectly, (i) take any action to solicit, initiate, facilitate or encourage the making of its directors, officers or employees any Acquisition Proposal or any investment bankerinquiry with respect thereto, financial advisor, attorney, accountant or other representative retained by it (ii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to, directly or indirectly through another personafford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person that has made or is known to it to be considering making an Acquisition Proposal or (iii) engage in any negotiations with any Person with respect to any Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, prior to the Acceptance Date, the Company may (A) furnish such information and provide such access to a Person who has made an unsolicited, bona fide Acquisition Proposal and (B) engage in negotiations with such Person concerning such Acquisition Proposal, if and only if, in the case of each of (A) and (B) above, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faithfaith by a majority vote, after consultation with receipt of the advice of its financial advisor and outside counsel legal counsel, that failure such Acquisition Proposal is reasonably likely to do so would result in a breach Superior Proposal, (ii) the Company complies with all of its fiduciary duties to obligations under Section 6.04(c) in respect of such Acquisition Proposal and (iii) as a condition of such Person obtaining such non-public information or access (in the Company's stockholders under applicable law, case of (A) above) the Company may, in response to a Superior receives from the Person making such Acquisition Proposal (as defined in Section 6.04(b)) an executed confidentiality agreement the material terms of which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect are no less favorable to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary than those contained in the Confidentiality Agreement; provided that such confidentiality agreement need not contain any standstill provisions. (as determined by b) Notwithstanding anything to the contrary in this Agreement, the Board of Directors of the Company after consultation with shall recommend, and may not withdraw or, subject to the next sentence, modify or change, in a manner adverse to Parent, its outside counsel) approval or recommendation of, the Offer, the Merger or this Agreement unless prior to the Acceptance Date the Board of Directors of the Company determines in good faith by a majority vote that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such an Acquisition Proposal constitutes a Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents Nothing in this Agreement shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request prevent the return Board of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets Directors of the Company from making any disclosure to its stockholders if required by applicable law; provided that disclosures under this sentence shall not be a basis, in themselves, for the Company to terminate this Agreement pursuant to Section 10.01(h). (c) The Company shall promptly (and its Subsidiariesin no event later than 12 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided orally and in writing, taken as a whole, (wshall identify the Person making the relevant Acquisition Proposal and shall set forth the material terms thereof) direct Parent after the Company has received any Acquisition Proposal or indirect acquisition or purchase of 15% or more of any class of equity securities of request for nonpublic information relating to the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a wholeor for access to the properties, (x) tender offer books or exchange offer for Shares of any class of equity securities records of the Company or any of its Subsidiaries, by any Person that the Company has knowledge may be considering making, or has made, an Acquisition Proposal. The Company will keep Parent informed of the status and material terms of (including all changes to the status and material terms of) any such Acquisition Proposal or request. (d) The Company (x) shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its officers, directors, key employees, consultants, financial advisors and other agents or representatives to, cease immediately and cause to be terminated all activities, discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to any Acquisition Proposal and (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the 12 months prior to the date of this Agreement in connection with such Person's consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries. (e) For purposes of this Agreement, "ACQUISITION PROPOSAL" means any offer or proposal with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving involving, or any purchase or sale of all or any significant portion of the assets or 10% or more of the outstanding equity securities of, the Company or any of its Subsidiaries Subsidiaries, other than the transactions contemplated by this Agreement. For purposes of this Agreement, "SUPERIOR PROPOSAL" means 28 33 any unsolicited, bona fide, written Acquisition Proposal which the Board of Directors of the Company concludes in good faith (after receipt of the advice of its financial advisor and outside legal counsel), taking into account all legal, financial, regulatory, fiduciary and other aspects of the proposal and the Person making such proposal, (i) would, if consummated, result in a transaction that is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by this Agreement and (ii) is reasonably capable of being completed (provided that for purposes of this definition the term Acquisition Proposal shall have the meaning assigned to such term above except that the reference to "10%" in the definition of "Acquisition Proposal" shall be deemed to be a reference to "50%" and "Acquisition Proposal" shall only be deemed to refer to a transaction involving the Company, or with respect to assets (including the shares of any Subsidiary of the Company) of the Company and its Subsidiaries, taken as a whole, and not any of its Subsidiaries alone).

Other Offers. The Company and its Subsidiaries will not, directly or indirectly, and will use their reasonable best efforts to cause their Representatives not to (a) The Company shall not, nor shall it permit take any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) action to solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined below) or (iib) participate engage in negotiations with, or disclose any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior nonpublic information relating to the date Company or any of its Subsidiaries or afford access to the properties, books or records of the Company purchases Shares or any of its Subsidiaries to, any person that may, to the Company's Knowledge, be considering making, or has made, an Acquisition Proposal; provided that the Company may, in response to an unsolicited bona fide written proposal from a third party regarding an Acquisition Proposal, engage in the Offer activities specified in clause (the "OFFER COMPLETION DATE")b) of this Section 6.04, if (i) following consultation with outside counsel, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with outside counsel faith that failure to do so would be reasonably likely to constitute or result in a breach of its fiduciary duties to the Company's stockholders under applicable law, (ii) following consultation with the Special Committee Financial Advisor, the Board of Directors of the Company may, (acting upon the recommendation of the Special Committee) determines in response to good faith that such Acquisition Proposal constitutes or has a reasonable likelihood of resulting in a Superior Proposal Proposal, and (as defined in Section 6.04(b)iii) which was the Company has received from such third party an executed confidentiality agreement with terms not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect materially less favorable to the Company than those contained in Section 6.03. The Company will as promptly as practicable (and in no event later than one business day after the relevant event) notify Parent in writing (which notice shall identify the person making the Acquisition Proposal or request for information and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior for access to the date hereof pursuant to the terms of any confidentiality agreements properties, books or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities records of the Company or any of its Subsidiaries whose business constitutes 15% by any person who is, to the Company's Knowledge, considering making or more has made an Acquisition Proposal. The Company will keep Parent currently informed of the net revenues, net income or assets of the Company status and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.material developments and terms

Other Offers. (a) The Neither the Company shall not, nor shall it permit any of its Subsidiaries toexecutive officers or directors, nor shall it authorize or permit any of its directorsfinancial advisors, officers or employees or any investment banker, financial advisor, attorney, accountant counsel or other representative retained by it or any of its Subsidiaries toagents shall intentionally, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take solicit any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal Third Party (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice 5.10) concerning any merger, sale of its decision to take such action to Buyer the assets (the "COMPANY NOTICE"other than Inventory) and compliance with Section 6.04(c), (x) furnish information with respect to of the Company and its Subsidiaries to any person making having a Superior Proposal fair market value in the aggregate in excess of Two Million Four Hundred Thousand Dollars ($2,400,000), sale of shares of capital stock (other than pursuant to the exercise of Options or Warrants) or similar transactions involving the Company or any Subsidiary of the Company or any divisions thereof (an “Acquisition Proposal”); provided, however, that nothing contained in this Section 5.10 shall prohibit the Company or the Board of Directors from (a) furnishing a Third Party seeking to initiate discussions or negotiations with respect to an Acquisition Proposal (without any violation of this Section 5.10 by the Company) information concerning the Company and its Subsidiaries and their businesses, properties and assets after execution of a customary confidentiality agreement agreement, (as determined by the Company after consultation with its outside counselb) that is no less restrictive than the Confidentiality Agreement and (y) participate engaging in discussions or negotiations regarding such with a Third Party who (without any violation of this Section 5.10 by the Company) has made a written Acquisition Proposal or a written proposal that is reasonably likely to lead to an Acquisition Proposal, and (c) following the receipt of a Third Party Acquisition Proposal that is financially superior to the Offer and the Merger (as determined in each case in good faith by the Board of Directors after consultation with the Company’s financial advisor) (a “Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior ”) terminating this Agreement by sending written notice to the date hereof pursuant Parent and Merger Sub, but in each case referred to in the foregoing clauses (a) through (c) only to the terms extent that the Board of any confidentiality agreements or otherwiseDirectors shall conclude in good faith upon advice of outside legal counsel that such action is necessary in order for the Board of Directors to act in a manner that is consistent with its fiduciary obligations under applicable Law. For purposes of this Agreement, "TAKEOVER PROPOSAL" means “Third Party” shall mean any inquirycorporation, proposal partnership, limited liability company, association, person or offer from any person other entity or “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) other than Parent, Merger Sub or any affiliates of Parent or Merger Sub and their respective directors, officers, employees, representatives and agents. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Third Party Acquisition Proposal existing on the Buyer date hereof. As long as this Agreement remains in effect, the Company will promptly communicate in writing to Parent and Merger Subsidiary relating Sub the existence of any Third Party Acquisition Proposal received after the execution hereof. In the event that this Agreement is terminated pursuant to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenuesthis Section, net income or the assets of the Company shall pay to the Parent a termination fee in the amount of Five Million and its Subsidiaries, taken as a whole, 00/100 Dollars (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement$5,000,000).

Other Offers. (a) The During the period from the date of this Agreement to the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Company shall will not, nor shall it permit any and will cause each of its Subsidiaries and their respective Representatives not to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or proposals from, (ii) participate in discuss or negotiate with, provide any discussions nonpublic information to, or negotiations regarding (iii) consider the merits of any Takeover Proposalunsolicited inquiries or proposals from, any Person (other than Acquiror) relating to any potential Acquisition Transaction. Notwithstanding the foregoing, if, at any time prior to in the date event that the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faith, faith and after consultation with outside counsel legal counsel, that an Unsolicited Proposal, which does not result from a breach of this Section 5.5, constitutes or is reasonably likely to result in a Superior Proposal and that failure to do so would pursue such Unsolicited Proposal is reasonably likely to result in a breach of its fiduciary duties to the Company's stockholders under any applicable lawLegal Requirement, the Company Board may, in response to a Superior Proposal (so long as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of Company complies at all times with its obligations under this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer 5.5(i) above: (the "COMPANY NOTICE") and compliance with Section 6.04(c), (xa) furnish information with respect to the Company and its Subsidiaries to any person such Person making a Superior such Unsolicited Proposal pursuant to a customary confidentiality agreement agreement; (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (yb) participate in discussions or negotiations regarding such Unsolicited Proposal; and (c) terminate this Agreement in order to concurrently enter into an agreement with respect to such Unsolicited Proposal; provided, however, that the Company Board may not terminate this Agreement pursuant to this Section 5.5 unless and until: (x) five (5) Business Days have elapsed following the delivery to Acquiror of a written notice of such determination by the Company Board and during such five (5) Business-Day period, Company otherwise cooperates with Acquiror with the intent of enabling the parties to engage in good faith negotiations so that the Contemplated Transactions may be effected: and (y) at the end of such five (5) Business-Day period the Company Board continues, in good faith and after consultation with outside legal counsel, to believe the Unsolicited Proposal at issue constitutes a Superior Proposal. The In addition to the foregoing obligations of Company, its affiliates and their respective officers, directors, employees, representatives and agents Company shall immediately cease all existing activitiesadvise Acquiror orally and in writing of any request for information or of any Unsolicited Proposal, the material terms and conditions of such request or Unsolicited Proposal. Company shall keep Acquiror reasonably informed of the status and details (including amendments or proposed amendments) of any such request or Unsolicited Proposal, including the status of any discussions and or negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. (a) The No Acquired Corporation Company shall not, nor shall it permit any of its Subsidiaries toshall, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Representatives to, directly or indirectly through another person, (iA) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of furnishing information)B) participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the 0000 Xxx) any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate, facilitate any inquiries or the making of any proposal which that constitutes or may reasonably may give rise be expected to lead to, any Acquisition Proposal, (C) subject to Section 6.2(c)(i), approve, endorse or recommend any Acquisition Proposal, or (D) enter into any Contract contemplating or otherwise relating to any Takeover Proposal (as defined belowAcquisition Transaction; provided however, that this Section 6.2(c)(ii) shall not prohibit an Acquired Corporation Company from furnishing nonpublic information regarding any Acquired Corporation Company to, or (ii) participate in any entering into a confidentiality agreement or discussions or negotiations regarding with, any Takeover Proposal. Notwithstanding Person or Group in response to a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (and not withdrawn) if (I) no Acquired Corporation Company or Representative thereof shall have violated any of the foregoing, if, at any time prior to the date the Company purchases Shares restrictions set forth in the Offer (the "OFFER COMPLETION DATE"this Section 6.2(c)(ii), (II) the Board of Directors of Acquired Corporation determines in its good faith judgment (based on, among other things, the Company determines advice of Acquired Corporation’s financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (III) the Board of Directors of Acquired Corporation concludes in good faith, after consultation with its outside counsel legal counsel, that the failure to do so take such action would result in a breach of be inconsistent with its fiduciary duties, as such duties to would exist in the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach absence of this Section 6.04 6.2(c)(ii), to the stockholders of Acquired Corporation under applicable Law, (IV) (x) at least five business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Acquired Corporation gives Buyer written notice of the identity of such Person or Group and subject of Acquired Corporation’s intention to providing furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group, and (y) Acquired Corporation receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing Party than the terms of the confidentiality agreement between Acquired Corporation and Buyer and (V) contemporaneously with furnishing any such nonpublic information to such Person or Group, Acquired Corporation furnishes such nonpublic information to Buyer (to the extent such nonpublic information has not been previously furnished by Acquired Corporation to Buyer). In addition to the foregoing, Acquired Corporation shall provide Buyer with at least five business days’ prior written notice of its decision a meeting of the Board of Directors of Acquired Corporation at which meeting the Board of Directors of Acquired Corporation is reasonably expected to take such action resolve to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making recommend a Superior Proposal pursuant to its stockholders and together with such notice a customary confidentiality agreement (as determined by copy of the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding most recently proposed documentation relating to such Superior Proposal. The Company, its affiliates ; provided further that Acquired Corporation hereby agrees promptly to provide to Buyer any revised documentation and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations any Contract entered into in connection with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. (a) The Company shall cease, and shall cause its subsidiaries to cease and use its reasonable best efforts to cause the Company's and its subsidiaries' respective directors, officers, employees, investment bankers and other representatives to cease, any discussions or negotiations with any Person that may be ongoing as of the date of this Agreement with respect to a Takeover Proposal. The Company shall not, nor and shall it permit any of cause its Subsidiaries to, nor subsidiaries not to and shall it authorize or permit any of use its reasonable best efforts to cause the Company's and its subsidiaries' respective directors, officers or employees or any officers, employees, investment banker, financial advisor, attorney, accountant or bankers and other representative retained by it or any of its Subsidiaries representatives not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or ) the making initiation of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions with any third party regarding, or negotiations regarding furnish to any third party any non-public information in connection with, any Takeover Proposal. Notwithstanding the foregoing, ifthe Board of Directors of the Company and its representatives may in any event (x) have discussions with any Person that has made an unsolicited Takeover Proposal solely in order to clarify and understand the terms and conditions of such proposal pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement (and the Company shall provide Parent and Purchaser with the same waivers of, at and modifications to, the Confidentiality Agreement as those made available to any time prior other Person) if the Board of Directors of the Company, after consultation with a legal advisor of national reputation, determines in good faith that it is necessary to take such action to comply with its fiduciary duties under applicable Law, and (y) if the Board of Directors of the Company receives an unsolicited Takeover Proposal that the Board of Directors of the Company, after consulting with a legal advisor of national reputation and with a financial advisor of national reputation, determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, then the Company may (A) furnish non-public information to the date Person making such Takeover Proposal and (B) participate in discussions and negotiations with such Person regarding a Takeover Proposal, in each case pursuant to a confidentiality agreement with such Person on terms and conditions no more favorable to such Person than those contained in the Confidentiality Agreement (and the Company purchases Shares shall provide Parent and Purchaser with the same waivers of, and modifications to, the Confidentiality Agreement as those made available to any other Person). (b) Except as expressly permitted by this Section 5.2(b), neither the Board of Directors of the Company nor any committee thereof shall (i)(A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the Offer approval by such Board of Directors described in clause (ii) of Section 3.3(b) or the recommendation by such Board of Directors described in clause (iii) of Section 3.3(b) or (B) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal or (ii) cause or authorize the Company or any of its subsidiaries to enter into any contract or agreement (other than a confidentiality agreement) with respect to a Takeover Proposal (a "OFFER COMPLETION DATECOMPANY ACQUISITION AGREEMENT"). Notwithstanding the foregoing the Board of Directors of the Company may withdraw or modify its recommendation described in clause (ii) of Section 3.3(b) if the Board determines in good faith, after reviewing applicable provisions of state law and after consulting with a legal advisor of national reputation, that such action is necessary for the Board of Directors to comply with its fiduciary duties under applicable Law. In addition, subject to compliance with the Company's obligations under Section 5.2(a), if the Board of Directors of the Company receives a Takeover Proposal that it determines in good faith, after consultation with a legal advisor of national reputation and a financial advisor of national reputation, constitutes a Superior Proposal and that it is necessary to take the following actions to comply with its fiduciary duties under applicable Law, the Board of Directors of the Company determines in good faithmay enter into a Company Acquisition Agreement with respect to such Superior Proposal if (I) the Company provides written notice to Parent, after consultation with outside counsel that failure to do so would result in a breach which notice must be received by Parent at least three business days (inclusive of its fiduciary duties the day of receipt by Parent of such notice) prior to the Company's stockholders under applicable law, time it intends to cause the Company mayto enter into such Company Acquisition Agreement, in response to advising Parent that the Board of Directors of the Company has received a Takeover Proposal which it believes constitutes a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from and intends to accept and, with respect to which, enter into a breach Company Acquisition Agreement, subject to the provisions of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c5.2(b), providing a copy of any written offer or proposal describing the Superior Proposal and identifying the Person making such Superior Proposal, (xII) furnish information as of the end of such three business day period referenced above, Parent shall have failed to revise the terms of the Offer and the Merger to an extent necessary to cause the Board of Directors to change its determination that such Takeover Proposal continues to be a Superior Proposal, and (III) the Company terminates this Agreement pursuant to Section 7.1(c)(ii) within three business days after the lapse of the three business day period referenced above, concurrently enters into a Company Acquisition Agreement with respect to the Company and its Subsidiaries to any person making a such Superior Proposal pursuant and pays the Termination Fee to a customary confidentiality agreement Parent in accordance with Section 7.3(b). (as determined by the Company after consultation with its outside counselc) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.:

Other Offers. (a) The Company and its Subsidiaries will not and the Company will use its reasonable best efforts to cause the officers, directors, agents, representatives or advisors of the Company and its Subsidiaries not to, directly or indirectly, take any action to solicit, initiate, encourage or knowingly facilitate the making of any Acquisition Proposal or any inquiry with respect thereto or engage in negotiations with any Person with respect thereto, or disclose any non-public information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that has made, or to the Company's knowledge, is considering making, any Acquisition Proposal, provided that nothing contained in this Section 5.04 shall notprevent the Company from furnishing non-public information to, nor shall it permit any or entering into negotiations with, or affording access to the properties, books or records of the Company or its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Person in connection with an unsolicited bona fide Acquisition Proposal received from such Person so long as prior to furnishing non-public information to, directly or indirectly through another personentering into negotiations with, such Person, (i) solicit, initiate or encourage (including by way the Special Committee of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company by a majority vote determines in its good faithfaith judgment that it is necessary to do so to comply with its fiduciary duty to shareholders under applicable law, after consultation with outside counsel legal counsel, and (ii) the Company receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement between the Company and DLJ Merchant Banking II, Inc. referred to in Section 6.02. Nothing contained in this Agreement shall prevent the Board of Directors of the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal. Unless the Special Committee of the Board of Directors of the Company by a majority vote determines in its good faith judgment that failure it is necessary not to do so would result in a breach of to comply with its fiduciary duties duty to the Company's stockholders under applicable law, after consultation with outside legal counsel, the Company may, will (a) promptly (and in response to a Superior no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal (as defined in Section 6.04(b)and set forth the material terms thereof) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), Merger Sub of: (x) furnish the receipt of any Acquisition Proposal, (y) any indication, of which the Company has knowledge, that any Person is considering making an Acquisition Proposal or (z) any request for non-public information with respect relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that has made, or to the Company's knowledge may be considering making, an Acquisition Proposal, and (b) will keep Merger Sub informed of the status and material terms of any such Acquisition Proposal or request. The Company and its Subsidiaries will, and the Company will use its reasonable best efforts to cause the officers, directors, agents, representatives or advisors of the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Companyto, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease and cause to be terminated all existing activitiesnegotiations, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties if any, that have taken place prior to the date hereof pursuant to the terms of with any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating parties with respect to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementAcquisition Proposal.

Other Offers. The Company and its Subsidiaries will not, directly or indirectly, and will use their reasonable best efforts to cause their Representatives not to (a) The Company shall not, nor shall it permit take any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) action to solicit, initiate or knowingly encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined below) or (iib) participate engage in negotiations with, or disclose any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior nonpublic information relating to the date Company or any of its Subsidiaries or afford access to the properties, books or records of the Company purchases Shares or any of its Subsidiaries to, any person that may, to the Company's Knowledge, be considering making, or has made, an Acquisition Proposal; provided that the Company may, in response to an unsolicited bona fide written proposal from a third party regarding an Acquisition Proposal, engage in the Offer activities specified in clause (the "OFFER COMPLETION DATE")b) of this Section 6.04, if (i) following consultation with outside counsel, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with outside counsel faith that failure to do so would be reasonably likely to constitute or result in a breach of its fiduciary duties under applicable law, (ii) following consultation with the Special Committee Financial Advisor, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) determines in good faith that such Acquisition Proposal constitutes or has a reasonable likelihood of resulting in a Superior Proposal, and (iii) the Company has received from such third party an executed confidentiality agreement with terms not materially less favorable to the Company than those contained in Section 6.03. The Company will as promptly as practicable (and in no event later than one business day after the relevant event) notify Parent in writing (which notice shall identify the person making the Acquisition Proposal or request for information and set forth the material terms thereof) after having received any Acquisition Proposal, or request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the properties, books or records of the Company or any of its Subsidiaries by any person who is, to the Company's stockholders under applicable lawKnowledge, considering making or has made an Acquisition Proposal. The Company will keep Parent currently informed of the Company may, in response to a Superior status and material developments and terms of any such Acquisition Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 request and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the any related material discussions or negotiations. The Company and its Subsidiaries shall, and shall use their reasonable best efforts to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and cause their respective officersRepresentatives to, directors, employees, representatives cease immediately and agents shall immediately cease cause to be terminated all existing activities, discussions and negotiations or negotiations, if any, with any parties persons conducted heretofore with respect to any Takeover Proposal Acquisition Proposal. Nothing in this Section 6.04 shall prohibit the Company, its Board of Directors or the Special Committee from taking and request disclosing to the return stockholders of all confidential information regarding the Company provided a position with respect to any such parties prior an Acquisition Proposal by a third party to the date hereof pursuant extent required under the Exchange Act or from making such disclosure to the terms stockholders of the Company which, after consultation with outside counsel of the Company, the Special Committee (or the Board of Directors of the Company acting upon the recommendation of the Special Committee) determines is required under applicable law; provided that nothing in this sentence shall affect the obligations of the Company, its Board of Directors or the Special Committee under any confidentiality agreements or otherwiseother provision of this Agreement. For purposes of this Agreement, "TAKEOVER PROPOSALAcquisition Proposal" means any inquiry, offer or proposal or offer from any person (other than an offer or proposal by or on behalf of Parent or its affiliates) for, or any indication of interest in (w) a merger or consolidation, or any similar transaction, involving the Buyer and Merger Company or any Significant Subsidiary relating to any of the Company, (vx) direct a purchase, lease or indirect other acquisition or purchase assumption of a business that constitutes 15% all or more substantially all of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition all or purchase substantially all of 15% the assets or more deposits of any class of equity securities Significant Subsidiary of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenuesCompany, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) a purchase or other acquisition (including by way of merger, consolidation, business combinationshare exchange, recapitalization, liquidation, dissolution tender offer or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.otherwise) of

Other Offers. (ai) The Company shall notExcept in connection with the transactions contemplated by this Agreement, from and after the date hereof and so long thereafter as this Agreement has not been terminated pursuant to SECTION 10.1 below, neither Seller nor shall it permit any officer, director or employee of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees Seller or any investment bankerother person authorized to and acting on Seller's behalf, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another person, shall (il) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any way in discussions or negotiations regarding with, provide any Takeover Proposalinformation or assistance to or enter into any agreement with, any person or group of persons (other than Purchaser, its Affiliates or its representatives) concerning (A) any acquisition of the Seller, any interest in the Seller or any part of the Acquisition Assets or (B) any merger, consolidation, or similar transaction involving the Seller, or (2) assist, solicit or participate in any effort or attempt by any other person to do or seek to do any of the foregoing (any such proposal or offer received or made during such period of time being hereinafter referred to as an "ALTERNATIVE PROPOSAL"). The Seller will promptly inform Purchaser if Seller is approached with respect to, or otherwise made aware of, any such solicitation, discussion or negotiation. Notwithstanding the foregoing, ifthe Seller may furnish information and access to, at and may participate in discussions and negotiate with, and may terminate this Agreement and enter into an agreement for a sale of assets or a merger, consolidation or similar transaction, with, any time prior corporation, partnership, person or other entity that has submitted a written Alternative Proposal to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), Seller if the Board of Directors of the Company Seller, following consultation with its legal counsel relating thereto, determines in their good faith, after consultation with outside counsel faith judgment that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision failing to take such action to Buyer would constitute a breach of such Board of Directors' legal duties, including any fiduciary duties (the "COMPANY NOTICE") including any duties of loyalty and compliance with Section 6.04(ccare), imposed by law. (xii) furnish information In the event that Seller enters into an agreement at any time within one year after the date hereof with respect someone who has submitted or received from Seller an Alternative Proposal during the time period referenced in the first sentence of Section 8.1(f) above (a "THIRD PARTY AGREEMENT"), Seller shall be required to submit to Purchaser a copy of such Third Party Agreement for its review. Without limiting the Company foregoing, in the event that Seller executes a Third Party Agreement for a sale of Acquisition Assets to or a merger or consolidation with such person and its Subsidiaries Seller in fact consummates a sale of Acquisition Assets to any or a merger or consolidation with such person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to first anniversary of this letter of intent, then Seller shall, at the terms time of closing of such transaction, pay Purchaser, as a termination fee and as liquidated damages and as full compensation for any damages sustained or suffered by Purchaser because of any confidentiality agreements or otherwise. For purposes breach hereof by Seller, cash in an amount equal to $400,000. (iii) This section shall terminate and be of no further effect in the event that Purchaser fails to close the purchase of the Acquisition Assets under this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person Agreement other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase because of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any Seller's breach of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by obligations in this Agreement.

Other Offers. (a) The From the date hereof until the termination ------------ hereof, the Company shall notand the Subsidiaries and the officers, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any agents of its the Company and the Subsidiaries towill not, directly or indirectly through another personindirectly, (i) take any action to solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined below) or (ii) participate except as may be required, in any discussions or negotiations regarding any Takeover response to an unsolicited bona fide written Acquisition Proposal. Notwithstanding , in order to comply with the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), fiduciary duties of the Board of Directors under applicable law as advised in writing by Company Counsel, engage in negotiations with, or disclose any nonpublic information relating to the Company or any Subsidiary or afford access to the properties, books or records of the Company determines or any Subsidiary to, any Person. The Company will promptly (and in good faithno event later than 24 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making the relevant Acquisition Proposal and set forth the material terms thereof) Buyer after (i) the Company has received any Acquisition Proposal, after consultation with outside counsel (ii) the Company has actual knowledge that failure to do so would result in a breach of its fiduciary duties any Person is considering making an Acquisition Proposal, or (iii) the Company has received any request for nonpublic information relating to the Company's stockholders under applicable lawCompany or any Subsidiary, or for access to the properties, books or records of the Company mayor any Subsidiary, by any Person that the Company has actual knowledge is considering making, or has made, an Acquisition Proposal. The Company will keep Buyer fully informed of the status and details of any such Acquisition Proposal or request. The Company shall not engage in response negotiations with, or disclose any nonpublic information to, any such Person unless it receives from such Person an executed confidentiality agreement with terms no less favorable to a Superior Proposal the Company than the Confidentiality Agreement (as defined in Section 6.04(b11.9)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 . The Company shall, and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and shall cause its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company's directors, its affiliates and their respective officers, directors, employees, financial advisors and other agents or representatives to, cease immediately and agents shall immediately cease cause to be terminated all existing activities, discussions and negotiations or negotiations, if any, with any parties Persons conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwiseAcquisition Proposal. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.this

Other Offers. (a) The From the date hereof until the termination hereof, the Company shall notand the Subsidiaries and the officers, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any agents of its the Company and the Subsidiaries towill not, directly or indirectly through another personindirectly, (i) take any action to solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Acquisition Proposal (as defined below) or (ii) participate except as may be required, in any discussions or negotiations regarding any Takeover response to an unsolicited bona fide written Acquisition Proposal. Notwithstanding , in order to comply with the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), fiduciary duties of the Board of Directors under applicable law as advised in writing by Company Counsel, engage in negotiations with, or disclose any nonpublic information relating to the Company or any Subsidiary or afford access to the properties, books or records of the Company determines or any Subsidiary to, any Person. The Company will promptly (and in good faithno event later than 24 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making the relevant Acquisition Proposal and set forth the material terms thereof) Buyer after (i) the Company has received any Acquisition Proposal, after consultation with outside counsel (ii) the Company has actual knowledge that failure to do so would result in a breach of its fiduciary duties any Person is considering making an Acquisition Proposal, or (iii) the Company has received any request for nonpublic information relating to the Company's stockholders under applicable lawCompany or any Subsidiary, or for access to the properties, books or records of the Company mayor any Subsidiary, by any Person that the Company has actual knowledge is considering making, or has made, an Acquisition Proposal. The Company will keep Buyer fully informed of the status and details of any such Acquisition Proposal or request. The Company shall not engage in response negotiations with, or disclose any nonpublic information to, any such Person unless it receives from such Person an executed confidentiality agreement with terms no less favorable to a Superior Proposal the Company than the Confidentiality Agreement (as defined in Section 6.04(b11.9)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 . The Company shall, and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and shall cause its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Company's directors, its affiliates and their respective officers, directors, employees, financial advisors and other agents or representatives to, cease immediately and agents shall immediately cease cause to be terminated all existing activities, discussions and negotiations or negotiations, if any, with any parties Persons conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwiseAcquisition Proposal. For purposes of this Agreement, "TAKEOVER PROPOSALAcquisition Proposal" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer proposal for Shares of any class of equity securities of the Company a merger or any of its Subsidiaries, or (y) merger, consolidation, other business combination, recapitalization, liquidation, dissolution or similar transaction combination involving the Company or any Subsidiary or the acquisition of its Subsidiaries any equity interest in, or a substantial portion of the assets of, the Company or any Subsidiary, other than the transactions contemplated by this Agreement.

Other Offers. (a) The From the date hereof until the ------------ termination hereof, the Company and its Subsidiaries shall not, nor and the Company shall it permit any use its reasonable best efforts to cause the officers, directors, key employees, financial advisors or other agents or representatives of the Company and its Subsidiaries not to, nor shall it authorize directly or permit indirectly, (i) take any action to solicit, initiate, facilitate or encourage the making of its directors, officers or employees any Acquisition Proposal or any investment bankerinquiry with respect thereto, financial advisor, attorney, accountant or other representative retained by it (ii) disclose any nonpublic information relating to the Company or any of its Subsidiaries to, directly or indirectly through another personafford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person that has made or is known to it to be considering making an Acquisition Proposal or (iii) engage in any negotiations with any Person with respect to any Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, prior to the Acceptance Date, the Company may (A) furnish such information and provide such access to a Person who has made an unsolicited, bona fide Acquisition Proposal and (B) engage in negotiations with such Person concerning such Acquisition Proposal, if and only if, in the case of each of (A) and (B) above, (i) solicit, initiate or encourage (including by way of furnishing information), or take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors of the Company determines in good faithfaith by a majority vote, after consultation with receipt of the advice of its financial advisor and outside counsel legal counsel, that failure such Acquisition Proposal is reasonably likely to do so would result in a breach Superior Proposal, (ii) the Company complies with all of its fiduciary duties to obligations under Section 6.04(c) in respect of such Acquisition Proposal and (iii) as a condition of such Person obtaining such non-public information or access (in the Company's stockholders under applicable law, case of (A) above) the Company may, in response to a Superior receives from the Person making such Acquisition Proposal (as defined in Section 6.04(b)) an executed confidentiality agreement the material terms of which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect are no less favorable to the Company and its Subsidiaries to any person making a Superior Proposal pursuant to a customary than those contained in the Confidentiality Agreement; provided that such confidentiality agreement need not contain any standstill provisions. (as determined by b) Notwithstanding anything to the contrary in this Agreement, the Board of Directors of the Company after consultation with shall recommend, and may not withdraw or, subject to the next sentence, modify or change, in a manner adverse to Parent, its outside counsel) approval or recommendation of, the Offer, the Merger or this Agreement unless prior to the Acceptance Date the Board of Directors of the Company determines in good faith by a majority vote that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such an Acquisition Proposal constitutes a Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents Nothing in this Agreement shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any Takeover Proposal and request prevent the return Board of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets Directors of the Company from making any disclosure to its stockholders if required by applicable law; provided that disclosures under this sentence shall not be a basis, in themselves, for the Company to terminate this Agreement pursuant to Section 10.01(h). (c) The Company shall promptly (and its Subsidiariesin no event later than 12 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided orally and in writing, taken as a whole, (wshall identify the Person making the relevant Acquisition Proposal and shall set forth the material terms thereof) direct Parent after the Company has received any Acquisition Proposal or indirect acquisition or purchase of 15% or more of any class of equity securities of request for nonpublic information relating to the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a wholeor for access to the properties, (x) tender offer books or exchange offer for Shares of any class of equity securities records of the Company or any of its Subsidiaries, by any Person that the Company has knowledge may be considering making, or has made, an Acquisition Proposal. The Company will keep Parent informed of the status and material terms of (including all changes to the status and material terms of) any such Acquisition Proposal or request. (d) The Company (x) shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its officers, directors, key employees, consultants, financial advisors and other agents or representatives to, cease immediately and cause to be terminated all activities, discussions or negotiations, if any, with any Persons conducted prior to the date of this Agreement with respect to any Acquisition Proposal and (y) shall promptly request each Person, if any, that has executed a confidentiality agreement within the 12 months prior to the date of this Agreement in connection with such Person's consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries. (e) For purposes of this Agreement, "ACQUISITION PROPOSAL" means any offer or proposal with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving involving, or any purchase or sale of all or any significant portion of the assets or 10% or more of the outstanding equity securities of, the Company or any of its Subsidiaries Subsidiaries, other than the transactions contemplated by this Agreement. For purposes of this Agreement, "SUPERIOR PROPOSAL" means any unsolicited, bona fide, written Acquisition Proposal which the Board of Directors of the Company concludes in good faith (after receipt of the advice of its financial advisor and outside legal counsel), taking into account all legal, financial, regulatory, fiduciary and other aspects of the proposal and the Person making such proposal, (i) would, if consummated, result in a transaction that is more favorable to the Company's stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by this Agreement and (ii) is reasonably capable of being completed (provided that for purposes of this definition the term Acquisition Proposal shall have the meaning assigned to such term above except that the reference to "10%" in the definition of "Acquisition Proposal" shall be deemed to be a reference to "50%" and "Acquisition Proposal" shall only be deemed to refer to a transaction involving the Company, or with respect to assets (including the shares of any Subsidiary of the Company) of the Company and its Subsidiaries, taken as a whole, and not any of its Subsidiaries alone).

Other Offers. (a) The No Acquired Corporation Company shall not, nor shall it permit any of its Subsidiaries toshall, nor shall it authorize or permit any of its directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Representatives to, directly or indirectly through another person, (iA) solicit, initiate initiate, encourage or encourage induce the making, submission or announcement of any Acquisition Proposal, (including by way of furnishing information)B) participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the 1000 Xxx) any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate, facilitate any inquiries or the making of any proposal which that constitutes or may reasonably may give rise be expected to lead to, any Acquisition Proposal, (C) subject to Section 6.2(c)(i), approve, endorse or recommend any Acquisition Proposal, or (D) enter into any Contract contemplating or otherwise relating to any Takeover Proposal (as defined belowAcquisition Transaction; provided however, that this Section 6.2(c)(ii) shall not prohibit an Acquired Corporation Company from furnishing nonpublic information regarding any Acquired Corporation Company to, or (ii) participate in any entering into a confidentiality agreement or discussions or negotiations regarding with, any Takeover Proposal. Notwithstanding Person or Group in response to a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (and not withdrawn) if (I) no Acquired Corporation Company or Representative thereof shall have violated any of the foregoing, if, at any time prior to the date the Company purchases Shares restrictions set forth in the Offer (the "OFFER COMPLETION DATE"this Section 6.2(c)(ii), (II) the Board of Directors of Acquired Corporation determines in its good faith judgment (based on, among other things, the Company determines advice of Acquired Corporation’s financial advisors that such Acquisition Proposal constitutes a Superior Proposal, (III) the Board of Directors of Acquired Corporation concludes in good faith, after consultation with its outside counsel legal counsel, that the failure to do so take such action would result in a breach of be inconsistent with its fiduciary duties, as such duties to would exist in the Company's stockholders under applicable law, the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach absence of this Section 6.04 6.2(c)(ii), to the stockholders of Acquired Corporation under applicable Law, (IV) (x) at least five business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Acquired Corporation gives Buyer written notice of the identity of such Person or Group and subject of Acquired Corporation’s intention to providing furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group, and (y) Acquired Corporation receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing Party than the terms of the confidentiality agreement between Acquired Corporation and Buyer and (V) contemporaneously with furnishing any such nonpublic information to such Person or Group, Acquired Corporation furnishes such nonpublic information to Buyer (to the extent such nonpublic information has not been previously furnished by Acquired Corporation to Buyer). In addition to the foregoing, Acquired Corporation shall provide Buyer with at least five business days’ prior written notice of its decision a meeting of the Board of Directors of Acquired Corporation at which meeting the Board of Directors of Acquired Corporation is reasonably expected to take such action resolve to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and its Subsidiaries to any person making recommend a Superior Proposal pursuant to its stockholders and together with such notice a customary confidentiality agreement (as determined by copy of the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding most recently proposed documentation relating to such Superior Proposal. The Company, its affiliates ; provided further that Acquired Corporation hereby agrees promptly to provide to Buyer any revised documentation and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations any Contract entered into in connection with any parties conducted heretofore with respect to any Takeover Proposal and request the return of all confidential information regarding the Company provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementSuperior Proposal.

Other Offers. (a) The From the date hereof until the termination of this Agreement, the Company shall will not, nor shall it permit any of and will cause its Subsidiaries to, nor shall it authorize or permit any of its and the directors, officers or employees or any investment bankerofficers, employees, financial advisor, attorney, accountant advisors and other agents or other representative retained by it representatives of the Company or any of its Subsidiaries not to, directly or indirectly through another personindirectly, (i) take any action to solicit, initiate or encourage (including by way of furnishing information)any Acquisition Proposal with respect to the Company or engage in negotiations with, or take disclose any other action designed non-public information relating to the Company or reasonably likely any Subsidiary of the Company or afford access to facilitatethe properties, books or records of the Company or any Subsidiary of the Company to, any inquiries Person that has informed the Company that it is considering making, or the making of any proposal which constitutes or reasonably may give rise to any Takeover has made, an Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, if, at any time prior with respect to the date Company, or any Person that the Company purchases Shares after reasonable inquiry believes is a potential purchaser of the Company, provided, however, that the Company may, in the Offer (the "OFFER COMPLETION DATE")response to an unsolicited bona fide written proposal regarding an Acquisition Proposal by any Person, disclose such non-public information to or engage in negotiations with such Person, if the Board of Directors of the Company determines in good faithfaith that such Acquisition Proposal is reasonably likely to be a Superior Proposal, and, provided further, that prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Letter Agreement dated as of July 21, 1998 between Buyer and the Company ("CONFIDENTIALITY AGREEMENT"). The Company will promptly (and in no event later than 24 hours after consultation receipt of the relevant Acquisition Proposal with outside counsel that failure to do so would result in a breach of its fiduciary duties respect to the Company's stockholders under applicable law), notify (which notice shall be provided orally and in writing and shall identify the Person making the relevant Acquisition Proposal with respect to the Company) Buyer after receipt of any Acquisition Proposal or any indication from any Person that such Person is considering making an Acquisition Proposal with respect to the Company mayor any request for non-public information relating to the Company or any Subsidiary of the Company or for access to any properties, in response to a Superior books or records of the Company or any Subsidiary of the Company by any Person that may be considering making, or has made, an Acquisition Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish information with respect to the Company and will keep Buyer fully informed of the status of any such Acquisition Proposal with respect to the Company. The Company shall give Buyer at least one business day's advance notice of any information to be supplied to, and at least two days' advance notice of any agreement to be entered into with, any Person making such Acquisition Proposal with respect to the Company. Except as provided herein, the Company shall, and shall cause its Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by and the Company after consultation with its outside counsel) that is no less restrictive than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding such Superior Proposal. The Companydirectors, its affiliates and their respective officers, directors, employees, financial advisors and other agents or representatives of the Company or any of its Subsidiaries to, cease immediately and agents shall immediately cease cause to be terminated all existing activities, discussions and negotiations or negotiations, if any, with any parties Persons conducted heretofore with respect to any Takeover Acquisition Proposal and request the return of all confidential information regarding the Company provided to any such parties prior with respect to the date hereof pursuant to the terms of any confidentiality agreements or otherwiseCompany. For purposes of this Agreement, "TAKEOVER ACQUISITION PROPOSAL" means any inquiryoffer or proposal for, proposal or offer from any person indication of interest in, (i) a merger or other business combination in any manner of an equity interest in an amount equal to or greater than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 1520% or more of the net revenues, net income class of such equity security then outstanding or a substantial portion of the assets of the Company and its Subsidiariesof, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more Subsidiary of the net revenuesCompany, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries in each case other than the transactions contemplated by this Agreement.the

Other Offers. (a) The Company Subject to Section 6.11(b), from the date of this Acquisition Agreement until the earlier of the Effective Time and the termination of this Acquisition Agreement pursuant to Section 10.2, Seller shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its directorsRepresentatives, officers Affiliates, Subsidiaries, or any of their respective officers, directors or employees of, or any investment banker, financial advisor, attorney, accountant attorney or other advisor or representative retained by it or any of its Subsidiaries to(collectively, “Representatives”) to (i) directly or indirectly through another person, (i) solicit, initiate or encourage the submission of any Acquisition Proposal, (including by way ii) enter into any letter of furnishing information)intent, agreement in principle, acquisition agreement or any other similar agreement (other than a confidentiality agreement entered into in accordance with Section 6.11(b) of this Acquisition Agreement) with respect to any Acquisition Proposal (each, a “Third Party Acquisition Agreement”) or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any other action designed or reasonably likely to facilitate, facilitate any inquiries or the making of any proposal which constitutes that constitutes, or may reasonably may give rise be expected to lead to, any Takeover Proposal Acquisition Proposal. (as defined belowb) or (ii) participate Notwithstanding anything to the contrary in any discussions or negotiations regarding any Takeover Proposal. Notwithstanding the foregoing, ifSection 6.11(a), at any time after the date of this Acquisition Agreement and prior to the date the Company purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Board of Directors receipt of the Company determines in good faithSeller Stockholder Approval, after consultation with outside counsel that failure to do so would result in a breach of its fiduciary duties to the Company's stockholders under applicable law, the Company Seller may, in response to a Superior an unsolicited Acquisition Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach of this Section 6.04 and subject to providing prior written notice of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c6.11(a), (xi) furnish information with respect to the Company Seller and its Subsidiaries Affiliates to any person the Person making a Superior such Acquisition Proposal and its Representatives pursuant to a customary confidentiality and standstill agreement (as determined by the Company after consultation with its outside counsel) that is no not less restrictive of the other party than the Confidentiality Agreement Agreement, except that such confidentiality and standstill agreement between Seller and such Person shall not contain any provisions that would prevent Seller from complying with its obligations to provide the required disclosure to Buyer pursuant to this Section 6.11 and (yii) participate in discussions or negotiations with such Person and its Representatives regarding such any Acquisition Proposal, if the Seller Board (A) believes in good faith the Acquisition Proposal to be bona fide, (B) determines in good faith (after consultation with outside legal counsel and a qualified financial advisor) that the unsolicited Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, (C) determines that the failure to take any of the above actions would not be consistent with its fiduciary duties to the stockholders of Seller under applicable Law and (D) complies in all material respects with the requirements set forth in Section 6.11(e); provided, however, that Seller shall promptly provide to Buyer any material non-public information concerning Seller or any of its Affiliates that is provided to the Person making such Acquisition Proposal or its Representatives which was not previously provided to Buyer. The CompanyUpon execution of this Acquisition Agreement, Seller, its affiliates Representatives, its Subsidiaries and their respective officers, directors, employees, representatives and agents Representatives shall immediately cease and cause to be terminated all existing activities, discussions and or negotiations with any parties Person previously conducted heretofore with respect to any Takeover Proposal Acquisition Proposal, and request will request, to the extent permitted under the applicable confidentiality agreement, the prompt return or destruction of all any confidential information regarding previously furnished to such Persons that has not been previously returned to Seller. Seller shall ensure that its Representatives are aware of the Company provided provisions of this Section 6.11, and any violation of the restrictions contained in this Section 6.11 by the Seller Board (including any committee thereof) or its Representatives shall be deemed to be a breach of this Section 6.11 by Seller. (i) Except as expressly permitted by this Section 6.11(c), (A) the Seller Board and any such parties committee thereof shall not (1) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Buyer, its Seller Board Recommendation (the “Seller Withdrawal Recommendation”) or (2) approve or recommend or propose publicly to approve or recommend to the holders of Seller Common Stock and Seller Series B Stock, or otherwise permit or cause Seller to accept or enter into, an Acquisition Proposal (any action described in this clause (A) being referred to as a “Seller Adverse Recommendation Change”), (B) neither Seller nor any of its subsidiaries shall approve, recommend, publicly propose or enter into any Third Party Acquisition Agreement, (C) neither Seller nor any of its subsidiaries shall release any third party from, or waive any provisions of, any confidentiality and standstill agreement to which Seller is a party except to the extent the Seller Board determines in good faith (after consultation with outside legal counsel) that the failure to so waive the applicable provisions of a confidentiality or standstill agreement would not be consistent with the Seller Board’s fiduciary duties to the stockholders of Seller under applicable Law, and (D) neither the Seller Board nor any committee thereof shall agree or resolve to take any actions set forth in clause (A), (B) or (C) of this sentence. (ii) Notwithstanding the foregoing, prior to the date hereof pursuant Seller Stockholder Approval, subject to Section 6.11(d), if the terms Seller Board (A) receives an Acquisition Proposal that has not resulted from a breach of any confidentiality agreements or otherwise. For purposes of Seller’s obligations under this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer Section 6.11 and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.it determines in good faith

Other Offers. (a) The Company shall From the date hereof until the Closing Date or the earlier termination of this Agreement in accordance with the terms hereof, the Restricted Parties will not, nor shall it permit any and each of its Subsidiaries to, nor shall it authorize or permit any of its them will direct and cause their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries and agents not to, directly or indirectly through another personindirectly, (i) solicit, initiate or encourage (including by way of furnishing information)initiate, knowingly encourage, take any action to facilitate the consummation of, or enter into agreements with any other Person with respect to, any Acquisition Proposal, (ii) engage or participate in discussions or negotiations with any Person with respect to an Acquisition Proposal, or (iii) in connection with an Acquisition Proposal, disclose any nonpublic information relating to the Properties, except that the Restricted Parties may take any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constitutes or reasonably may give rise to any Takeover Proposal described in clause (as defined belowii) or (iiiii) participate if (A) such action is taken in any discussions or negotiations regarding any Takeover connection with an unsolicited Acquisition Proposal. Notwithstanding the foregoing, if, at any time prior to the date the Company purchases Shares (B) in the Offer (the "OFFER COMPLETION DATE"), good faith judgment of the Board of Directors of the Company determines in good faithXXX Stores, after consultation with outside having received the advice of a financial advisor of internationally recognized reputation and of independent legal counsel that (who may be the regularly engaged independent legal counsel of XXX Stores) (1) the Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Transaction, and (2) the failure to do so take such action would result in be a breach of its the fiduciary duties to of the Company's stockholders Board of Directors of XXX Stores under applicable law, and (C) in the Company may, in response to a Superior Proposal (as defined in Section 6.04(b)) which was not solicited by it or which did not otherwise result from a breach case of this Section 6.04 and subject to providing prior written notice the disclosure of its decision to take such action to Buyer (the "COMPANY NOTICE") and compliance with Section 6.04(c), (x) furnish nonpublic information with respect relating to the Company and its Subsidiaries to any person making Properties, such information is covered by a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) that is no less restrictive favorable to XXX Stores than is afforded by the Confidentiality Agreement confidentiality agreement entered into between XXX Stores and (y) participate Purchaser in discussions connection with the Proposed Transaction. XXX Stores will promptly notify Purchaser orally, and confirm such notification in writing within 24 hours of such notification, of any Acquisition Proposal or negotiations regarding such Superior Proposal. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore inquiries with respect to any Takeover thereto. Any such written notification will include the identity of the Person making such inquiry or Acquisition Proposal and request a description of the return material terms of all confidential the Acquisition Proposal (or the nature of the inquiry) and will indicate whether any of the Restricted Parties is providing or intends to provide the Person making the Acquisition Proposal with access to nonpublic information regarding the Company provided to any such parties prior relating to the date hereof pursuant to the terms of any confidentiality agreements or otherwise. For purposes of this Agreement, "TAKEOVER PROPOSAL" means any inquiry, proposal or offer from any person other than the Buyer and Merger Subsidiary relating to any (v) direct or indirect acquisition or purchase of a business that constitutes 15% or more of the net revenues, net income or the assets of the Company and its Subsidiaries, taken as a whole, (w) direct or indirect acquisition or purchase of 15% or more of any class of equity securities of the Company or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, (x) tender offer or exchange offer for Shares of any class of equity securities of the Company or any of its Subsidiaries, or (y) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries other than the transactions contemplated by this AgreementProperties.