Common use of Other Offers Clause in Contracts

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (iA) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (Ai) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities ofequity securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, or (Ciii) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such iv) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Mergers (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets in order to facilitate or encourage any effort or attempt by any Third Party (other than MergerSub) to do or seek any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesMergerSub) to do or seek any of the foregoing, or (iiiC) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoMergerSub with the name of the other party redacted) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offerParty who has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) or Rule 14d-9 under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 5.2 and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in each case referred to in the foregoing clauses (ui) through (z), iv) only to the extent that the Independent Director Board of Directors shall have concluded in good faith upon on the basis of advice of legal from outside counsel that the failure to take such action is consistent with would result in a breach of the Independent Director's (and the Board's) fiduciary duties of the Board of Directors to the stockholders of the Company under applicable law; provided, further, that (A) the Board of Directors shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after reasonable notice to MergerSub with respect to such action, and (B) if the Board of Directors receives an Acquisition Proposal, to the extent it may do so without breaching its fiduciary duties as advised by counsel and as determined in good faith and without violating any of the conditions of such Acquisition Proposal, then the Company shall promptly inform MergerSub of the terms and conditions of such proposal and the identity of the person making it. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. As used in this Agreement, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. term "Payment EventThird Party" means any person, corporation, entity or "group," as defined in Section 13(d) of the termination Exchange Act, other than MergerSub or any of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of the Subsidiaries authorize or permit any of its or its their officers, directors, employees, agents, investment bankers, financial advisors, attorneys, accountants or other representatives or advisors (collectively, "REPRESENTATIVES") to (i) directly or indirectly solicit, initiate or take any action knowingly designed to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person which constitute or other entity or group, other than Mergerco and its representatives and Affiliates, relating would reasonably be expected to lead to (A) any acquisition or purchase of 2510% or more of the assets, consolidated assets of the Company and its Subsidiaries or any equity securities of over 25% the Company or any of any class of Equity Securities of, the Companyits Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer other than the Offer, that if consummated would result in any person Third Party (as defined below) beneficially owning 25% or more of any class of Equity Securities equity securities of the CompanyCompany or any of the Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of the Subsidiaries, other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would reasonably be expected to herein as an interfere with in a material way, prevent or materially delay the Offer or the Merger or which would reasonably be expected to materially dilute the benefits to Parent and Merger Sub of the transactions contemplated hereby (collectively, "Acquisition ProposalACQUISITION PROPOSALS"), (ii) agree to, endorse or agree recommend to or endorse its shareholders any Acquisition Proposal, (iiiii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco Parent and its representatives and AffiliatesMerger Sub) to do or seek any of the foregoing, or (iiiiv) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vW) furnishing information in writing concerning the Company and its businesses, properties or orally assets to a Third Party who has made an unsolicited bona fide written Superior Proposal (through the Company's employees and advisors) as defined below), pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company than the confidentiality letter referred to in Section 11.08 hereof, and a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company Parent and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offerMerger Sub), (wX) engaging in discussions or negotiations with such a Third Party that who has made such inquiryan unsolicited bona fide written Superior Proposal, proposal or offer, (Y) following receipt of a an unsolicited bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Boardwritten Superior Proposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders shareholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).40 47

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Mergeco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the CompanyCompany or the Subsidiary, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Mergeco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director Special Committee or the Board (acting through the Independent DirectorSpecial Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoMergeco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Mergeco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (x) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 4.7 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ux) through (z), only to the extent that the Independent Director Special Committee shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent DirectorSpecial Committee's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and NyborMergeco, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, Mergeco in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and accountants, a financial advisor to MergercoMergeco and the commitment fees related to the financing of the Merger actually paid or contractually required to be paid to investment funds, AREH and Nybor, banks or other financial institutions providing the Financing up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv8.1(a)(iv) or (v).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Acquirer and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 2535% or more of the assets, or of over 2535% of any class of Equity Securities of, the CompanyCompany and its Subsidiaries, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 2535% or more of any class of Equity Securities of the CompanyCompany or any of its Subsidiaries, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 35% of the assets other than the transactions contemplated by this Agreement (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Acquirer, a member of the Cxxx Xxxxx Group and its their respective representatives and Affiliates) to do or seek any of the foregoing, or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoAcquirer) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Acquirer or any of its Affiliates (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (wii) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 4.25 hereof and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (ui) through (ziv), only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law; provided, further, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after giving reasonable notice to Acquirer with respect to its intent to take such action. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. The Company and its Subsidiaries hereby represent that they are not now engaged in discussions or negotiations with any party other than Acquirer and its Affiliates with respect to any proposed Acquisition Proposal. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to MergercoRFE VI SBIC, AREH L.P. and Nyborits Affiliates, the Cxxx Xxxxx Group and Acquirer, within three (3) business days following such event, an aggregate fee of $350,000 PLUS all the reasonable out-of-pocket expenses incurred by MergercoRFE VI SBIC, AREH L.P. and Nyborits Affiliates, the Cxxx Xxxxx Group and the Acquirer in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a an environmental consultant (which legal, accounting and environmental fees and expenses shall not exceed $250,000), and the commitment fees related to the senior debt and subordinated mezzanine financing of the Merger actually paid or contractually required to be paid to investment funds, banks or other financial advisor institutions (including without limitation entities who are Affiliates of pension plans) providing the funds to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000finance the Merger. "Payment Event" means (I) the termination of this Agreement pursuant to Section 12.1(a)(iv8.1(a)(v); (II) the termination of this Agreement pursuant to Section 8.1(a)(vi); (III) the termination of this Agreement by Acquirer pursuant to Section 8.1(a)(iii) but only if the failure of a condition arises from a breach of obligation or untruth or incorrectness of any representation or warranty which breach or untruth or incorrectness arises out of the bad faith or willful misconduct of the Company; or (v).IV) the occurrence of any of the events described in clause

Other Offers. (a) The Company shall not not, nor shall it authorize or permit any of its Subsidiaries to (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives or advisors to to, (ix) solicit, initiate initiate, encourage or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity Person or group, other than Mergerco Sub and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 2520% or more of the assets, Assets (other than purchases and sales or leases of inventory and rental equipment in the ordinary course of business consistent with past practice) or of over 2520% of any class of Equity Securities of, of (A) the Company or (B) any of the Company's Subsidiaries whose Assets constitute more than 20% of the Assets (a "SIGNIFICANT SUBSIDIARY" (it being understood and agreed that in any event Xxxxxx Corporation shall be deemed to be a Significant Subsidiary)), (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Person beneficially owning 2520% or more of any class of Equity Securities of the CompanyCompany or any of its Significant Subsidiaries, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries other than the transactions contemplated by this Agreement (each such transaction being referred to herein as an "Acquisition ProposalACQUISITION PROPOSAL"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, foregoing or (iiiz) grant any material waiver or release under any standstill standstill, non-solicitation or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director Company or the Board (acting through the Independent Director) its Subsidiaries (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity Person or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Sub or any of its Affiliates (a "Third PartyTHIRD PARTY") in response to any unsolicited inquiry, proposal or offerwho has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal and/or (excluding Acquisition Proposals (1iii) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director taking any non-appealable, final action ordered to be obtained taken by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point or its Subsidiaries by any court of view)competent jurisdiction, (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ui) through and (zii), only to the extent that, in response to a bona fide Acquisition Proposal that the Independent Director Board of Directors of the Company shall have determined in good faith is reasonably likely to result in a Superior Proposal (as defined in SECTION 8.1(A)(VI), the Board of Directors of the Company shall have concluded in good faith upon the advice of legal after consultation with outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders shareholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) and (ii) until after the Company has given Sub notice thereof as contemplated by SECTION 6.4(D). Notwithstanding the foregoing, if, prior to the Shareholder Vote, the Board of Directors of the Company receives a bona fide Acquisition Proposal and as a result thereof the Board of Directors determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with their fiduciary obligations, the Board of Directors of the Company may withdraw or modify its approval or recommendation of the Merger and this Agreement. The Company shall immediately cease and cause order its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing; PROVIDED that the Company shall be responsible for any such advisor, agent or other intermediary failing to cease such activities, discussions and negotiations. Nothing contained in this SECTION 6.4 shall prohibit the Company from taking or disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or from making any disclosure to its shareholders if, in the good faith judgment of the Board of Directors of the Company, after consultation with outside counsel, failure to so disclose would be in violation of its obligations under Applicable Law. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and NyborSub, within three one business days day following such eventPayment Event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount fee of $500,0006,000,000. "Payment EventPAYMENT EVENT" means (1) the termination of this Agreement pursuant to Section 12.1(a)(ivSECTION 8.1(A)(V); (2) the termination of this Agreement pursuant to SECTION 8.1(A)(VI); or (3) the occurrence of any of the following events if this Agreement shall have been terminated (i) by Sub pursuant to SECTION 8.1(A)(III) due to a failure of the condition set forth in SECTION 7.1(A) to be satisfied or (ii) by the Company pursuant to SECTION 8.1(A)(III) due to a failure of the condition set forth in SECTION 7.1(A) to be satisfied: (A) prior to the Shareholder Vote, (x) any Third Party shall have become the beneficial owner of more than 20% of the outstanding Company Common Shares or (y) any Third Party shall have made, or proposed, communicated or disclosed in a manner which is or otherwise becomes public a bona fide intention to make an Acquisition Proposal (including by making such an Acquisition Proposal) and (B) on or prior to the date that is within 12 months of the termination of this Agreement, the Company either consummates with a Third Party a transaction the proposal of which would otherwise qualify as an Acquisition Proposal under SECTION 6.4(A) or enters into a definitive agreement with a Third Party with respect to a transaction the proposal of which would otherwise qualify as an Acquisition Proposal under SECTION 6.4(A) and such transaction is consummated within six months of the date of such definitive agreement (vwhether or not such Third Party is the Third Party referred to in clause (x) above) (it being understood that for purposes of this clause (B) the phrase "50%" is substituted for the phrase "20%" in the definition of Acquisition Proposal and that in determining whether such 50% threshold shall have been satisfied, all Assets and Equity Securities acquired by the Third Party that consummates the Acquisition Proposal prior to the termination of this Agreement shall be included).

Other Offers. (a) The Neither the Company nor any of its ------------ Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (ix) solicit, initiate or take any action knowingly to facilitate or encourage the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Person (as defined below) (other than Mergerco and its representatives and Affiliates, Parent) relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoingAcquisition Proposal, or otherwise cooperate furnish to any Person any information with respect to its business, properties or assets in connection with any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, Acquisition Proposal or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, however, that that, prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer, the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter deemed appropriate by the Special Committee (a copy of which shall be provided for informational purposes only to MergercoParent) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity or "group," as defined a Person who in Section 13(d) the judgment of the Exchange Act, other than Mergerco (Special Committee has made a "Third Party") in response to any unsolicited inquiry, proposal or offerbona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that Person who in the judgment of the Special Committee has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide an Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 7.02 and/or (zv) terminating this Agreement taking any ------------ non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (u) through (zi), (ii) and (iv) only to if (i) the extent that Company has complied with the Independent Director shall have concluded terms of this Section 7.04, (ii) the Company has received an unsolicited Acquisition Proposal ------------ which the Board of Directors of the Company determines in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's reasonably likely to result in a Superior Proposal, and (and the Board'siii) fiduciary duties to the stockholders of the Company under applicable lawshall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs. For purposes of this Section 7.04, the Company shall pay to Mergercoterm "Person" ------------ ------ means any person, AREH and Nyborcorporation, within three business days following such evententity or "group," as defined in Section 13(d) of the Exchange Act, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with other than Parent or relating to this Agreement and the Merger, which shall include reasonable fees and expenses any of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company Company, or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would, or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would, or could reasonably be expected to, materially dilute the benefits to MergerSub of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, or (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (Ai) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (Ciii) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such iv) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to MergerSub of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in furnish to any way withThird Party any information with respect to its business, properties or knowingly assist assets or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, foregoing or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoMergerSub) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offerParty who has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 5.02 and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (ui) through (z), iv) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law; provided, further, that (A) the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after giving reasonable notice to MergerSub with respect to its intent to take such action and (B) if the Board of Directors of the Company receives an Acquisition Proposal, to the extent it may do so without breaching its fiduciary duties as advised by counsel and as determined in good faith and without violating any of the conditions of such Acquisition Proposal, then the Company shall promptly inform MergerSub of the terms and conditions of such proposal and the identity of the person making it. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs. As used in this Agreement, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. term "Payment EventThird Party" means any person, corporation, entity or "group," as defined in Section 13(d) of the termination Exchange Act, other than MergerSub or any of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Sub and its representatives and Affiliatesaffiliates, relating to (Ai) any acquisition or purchase of 2520% or more of the assets, assets or of over 2520% of any class of Equity Securities of, of the CompanyCompany and its Subsidiaries, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 2520% or more of any class of Equity Securities of the CompanyCompany or any of its Subsidiaries, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the assets other than the transactions contemplated by this Agreement or (iv) any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which could reasonably be expected to materially dilute the benefits to Sub of the transactions contemplated hereby (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (iiy) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Sub and its representatives and Affiliatesaffiliates) to do or seek any of the foregoing, or (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Letter, and a copy of which shall be provided for informational purposes only to MergercoSub) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Sub or any of its Affiliates (a "Third Party") in response to any unsolicited inquiry, proposal or offerwho has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iii) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yiv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 4.25 hereof and/or (zv) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (ui) through (ziv), only to the extent that (A) the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable lawlaw and (B) the Board of Directors of the Company shall have concluded in good faith after consultation with its financial advisor that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person or entity making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement; provided, further, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after giving reasonable notice to Sub with respect to its intent to take such action and informing Sub of the terms and conditions of such proposal and the identity of the person making it. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. The Company and its Subsidiaries hereby represent that they are not now engaged in discussions or negotiations with any party other than Sub with respect to any proposed Acquisition Transaction. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and NyborSub, within three one business days day following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount fee of $500,0006,500,000. "Payment Event" means (1) the termination of this Agreement pursuant to Section 12.1(a)(iv8.1(a)(v); (2) the termination of this Agreement pursuant to Section 8.1(a)(vi); (III) the termination of this Agreement by Sub pursuant to Section 8.1(a)(iii) but only if the failure of a condition arises from a breach of obligation or untruth or incorrectness of any representation or warranty which breach or untruth or incorrectness arises out of the bad faith or willful misconduct of the Company; or (IV) the occurrence of any of the following events if this Agreement shall have been terminated (1) by Sub pursuant to Section 8.1(a)(iii) due to a failure of any of the conditions set forth in Sections 7.1(a), 7.3(a), 7.3(e), 7.3(g) or 7.3(h) to be satisfied, or (2) pursuant to Sections 8.1(a)(ii) or (vvii), or (3) by the Company pursuant to Section 8.1(a)(iii) due to a failure of any of the conditions set forth in Section 7.1(a) to be satisfied: (A) any Third Party other than Sub or any of its Affiliates or any party to the Voting Agreement (a "Permitted Party") (so long as no such party to the Voting Agreement is a member of a "group" (as defined in Section 13(d) of the Exchange Act) which includes any other person) shall have become the beneficial owner of more than 20% of the outstanding shares of Company Common Stock; or (B)(x) any Third Party (other than Sub or any of its Affiliates) shall have made, or proposed, communicated or disclosed in a manner which is or otherwise becomes public (including being known by stockholders of the Company owning of record or beneficially in the aggregate 5% or more of the outstanding shares of Company Common Stock) a bona fide intention to make an Acquisition Proposal (including by making such an Acquisition Proposal) and (y) on or prior to the date that is within 12 months of the termination of this Agreement, the Company either consummates with a Third Party a transaction the proposal of which would otherwise qualify as an Acquisition Proposal under Section 6.4(a) or enters into a definitive agreement with a Third Party with respect to a transaction the proposal of which would otherwise qualify as an Acquisition Proposal under Section 6.4 (whether or not such Third Party is the Third Party referred to in clause (x) above).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (ix) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity Person or group, other than Mergerco Parent and its representatives and Affiliates, relating to (Ai) any acquisition or purchase of 25% or more a material portion of the assets, assets or of over 25% of any class of Equity Securities of, of the Company, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Person beneficially owning 25% or more of any class of Equity Securities of the Company, or (Ciii) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute a material portion of the Assets other than the transactions contemplated by this Agreement or (iv) any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which could reasonably be expected to materially dilute the benefits to Parent of the transactions contemplated hereby (each such transaction being referred to herein as an "Acquisition ProposalACQUISITION PROPOSAL"), or agree to or endorse any Acquisition Proposal, (iiy) continue, enter into or participate in in, any discussions or negotiations regarding with, furnish any of the foregoinginformation to any Person (other than Parent and its representatives and Affiliates) in connection with, or otherwise cooperate in knowingly take any way with, or knowingly assist or participate in, other action to facilitate or encourage, encourage any effort or attempt by by, any other person Person (other than Mergerco Parent and its representatives and Affiliates) to do or seek any of the foregoingmake, or an Acquisition Proposal or, (iiiz) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, howeverHOWEVER, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) ), prior to a shareholder vote at the Special Meeting, in connection with the Merger from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vi) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Letter, and a copy of which shall be provided for informational purposes only to MergercoParent) concerning the Company and its businesses, properties or Assets to any personPerson or group, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third PartyTHIRD PARTY") in response to any unsolicited inquiry, proposal or offerwho has made a bona fide Acquisition Proposal, (wii) engaging in discussions or negotiations with such a Third Party that who has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (xiii) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, or (yiv) following receipt taking any non-appealable, final action ordered to be taken by the Company by any court of a bona fide Acquisition Proposalcompetent jurisdiction, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ui) through (ziii), only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith faith, upon the advice recommendation of legal counsel the Special Committee of the Board of Directors of the Company (the "SPECIAL COMMITTEE"), that such action Acquisition Proposal, if accepted, is consistent with reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the Independent Director's (proposal and the Board's) fiduciary duties Person or entity making the proposal and would, if consummated, result in a transaction that is more favorable to the stockholders of the Company under applicable law(other than the C&E Shareholders) than the transaction contemplated by this Agreement; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (i) through (iii) until after giving 72 hours' notice to Parent with respect to its intent to take such action and informing Parent of the terms and conditions of such proposal and the identity of the Person making it and providing Parent with a copy of any such proposal in writing. The Company shall immediately cease shall, at all times, promptly inform Parent of the status and cause its advisors, agents and other intermediaries to cease terms of any and all existing activities, discussions or negotiations regarding any Acquisition Proposal with any parties conducted prior to the date hereof with respect to any of the foregoingother Person. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person Third Party (as defined below) which constitutes or other entity or group, other than Mergerco and its representatives and Affiliates, relating could reasonably be expected to lead to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the Company, Company or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the Company, Company or any of its Subsidiaries, (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Buyer of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party in connection with an Acquisition Proposal any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesBuyer) to do or seek any of the foregoing, or ; (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, except that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).from

Other Offers. (a) The Neither the Company nor any Subsidiary shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any Subsidiary authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to subsidiaries to, (iA) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (other than Mergerco and its representatives and Affiliates, Buyer) relating to (Ai) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and the Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any Subsidiary, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any Subsidiary, or (Ciii) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company and the Subsidiaries, other than the Contemplated Transactions, or (each such iv) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Buyer of the Contemplated Transactions (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, , (iiB) enter into into, entertain or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets in order to facilitate or encourage any effort or attempt by any Third Party to do or seek any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) Third Party to do or seek any of the foregoing, or or (iiiC) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders equity securities of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).Subsidiary;

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person Third Party (as defined below) which constitutes or other entity or group, other than Mergerco and its representatives and Affiliates, relating could reasonably be expected to lead to lead to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the Company, Company or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the Company, Company or any of its Subsidiaries, (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Buyer of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party in connection with an Acquisition Proposal any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesBuyer) to do or seek any of the foregoing, or ; (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, except that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).from

Other Offers. (a) The Company shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company authorize or permit any of its or its officers, directors, agents, representatives or advisors to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, other than Mergerco Mergeco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assets, or of over 25% of any class of Equity Securities of, the CompanyCompany or the Subsidiary, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale of all or substantially all of the assets, liquidation, dissolution or similar transaction involving the Company (each such transaction being referred to herein as an "Acquisition Proposal"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco Mergeco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director Special Committee or the Board (acting through the Independent DirectorSpecial Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to MergercoMergeco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco Mergeco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, (x) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 4.11 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (ux) through (z), only to the extent that the Independent Director Special Committee shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent DirectorSpecial Committee's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and NyborMergeco, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, Mergeco in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and accountants, a financial advisor to MergercoMergeco and the commitment fees related to the financing of the Merger actually paid or contractually required to be paid to investment funds, AREH and Nybor, banks or other financial institutions providing the Financing up to a maximum reimbursement amount of $500,000400,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv8.1(a)(iv) or (v).

Other Offers. (a) The Neither the Company nor any Subsidiary shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any Subsidiary authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to subsidiaries to, (iA) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (other than Mergerco and its representatives and Affiliates, Buyer) relating to (Ai) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and the Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any Subsidiary, (Bii) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any Subsidiary, or (Ciii) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company and the Subsidiaries, other than the Contemplated Transactions, or (each such iv) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Buyer of the Contemplated Transactions (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, , (iiB) enter into into, entertain or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets in order to facilitate or encourage any effort or attempt by any Third Party to do or seek any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) Third Party to do or seek any of the foregoing, or or (iiiC) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any Subsidiary; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) information, including, without limitation, nonpublic information, pursuant to a customary an appropriate confidentiality letter (which letter shall not be on terms less favorable to the Company in any material respect than those contained in the Confidentiality Agreement, and a copy of which shall promptly be provided for informational purposes only to MergercoBuyer) concerning the Company and its businesses, properties or Assets assets to any persona Third Party who, corporationwithout prior solicitation by or negotiation with the Company, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (has made a "Third Party") in response to any unsolicited inquiry, proposal or offerbona fide Acquisition Proposal, (w) engaging in discussions or negotiations with such a Third Party that who has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) following receipt of such a bona fide Acquisition Proposal, taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) or Rule 14d-9 under the Exchange 1934 Act or otherwise making disclosure disclosures to its stockholders, (y) following receipt of such a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 6.02 and/or (z) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in each case referred to in the foregoing clauses (uv) through (z), ) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law. The ; and provided, further, that the Board of Directors of the Company shall immediately cease and cause its advisors, agents and other intermediaries not take any of the foregoing actions referred to cease any and all existing activities, discussions or negotiations with any parties conducted prior in clauses (v) through (y) until after reasonable notice to the date hereof Buyer with respect to any such action and the Board of Directors shall continue to advise Buyer after taking such action and, in addition, if the Board of Directors of the foregoing. (b) If a Payment Event (as hereinafter defined) occursCompany receives an Acquisition Proposal, then the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, promptly inform Buyer of the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).terms

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company Company, or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would, or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would, or could reasonably be expected to, materially dilute the benefits to MergerSub of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, or (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesMergerSub) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (ui) issuing one more publicly disclosing in a press releases regarding release, in a general manner, the Merger in compliance with Section 12.12 Company's permitted activities hereunder, (vii) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoMergerSub) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offerParty who has made a bona fide Acquisition Proposal, (wiii) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (iv) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules Rule 14d-9 and or Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yv) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 5.02 and/or (zvi) terminating this Agreement taking any non- appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (uii) through (z), vi) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of advice of legal from counsel that such action is consistent with required to prevent the Independent Director's (and Board of Directors of the Board's) Company from breaching its fiduciary duties to the stockholders of the Company under applicable law; provided, further, that (A) the Board of Directors of the Company shall not take any of the foregoing actions until reasonable notice to MergerSub of its intent to take such action shall have been give to MergerSub; and (B) if the Board of Directors of the Company receives an Acquisition Proposal, to the extent it may do so without breaching its fiduciary duties as advised by counsel and as determined in good faith, and without violating any of the conditions of such Acquisition Proposal, then the Company shall promptly inform MergerSub of the terms and conditions of such proposal and the identity of the person making it. The Subject to the provisions of the previous sentence, the Company shall immediately cease and cause its Subsidiaries and its and their advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties (other than MergerSub) conducted prior to the date hereof heretofore with respect to any of the foregoing. , and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party (bother than MergerSub) If a Payment Event (as hereinafter defined) occursor in the possession of any agent or advisor of any such party. As used in this Agreement, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. term "Payment EventThird Party" means any Person or "group," as described in Rule 13d- 5(b) promulgated under the termination Exchange Act, other than MergerSub or any of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, relating Buyer) which constitutes or would reasonably be expected to lead to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the Company, Company or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the Company, Company or any of its Subsidiaries, (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would or could reasonably be expected to herein as an interfere with, prevent or materially delay the Merger or which would or could reasonably be expected to materially dilute the benefits to Buyer of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, , (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesBuyer) to do or seek any of the foregoing, or or (iii) except for the waiver referred to in Section 6.7, grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).from

Other Offers. (a) The Company shall not (whether directly or indirectly through advisorsFrom the date hereof until the termination of this Agreement, agents or other intermediaries)Expert and the Expert Subsidiaries will not, nor shall the Company authorize or permit any of its or its and will use their best efforts to cause their officers, directors, agentsemployees, controlling stockholders, agents or representatives (including, without limitation, any investment banker, attorney or advisors to accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, (i) solicit, initiate or take any action knowingly to solicit, initiate, encourage or facilitate any inquiries or the submission making or implementation of inquiriesany proposal or offer (including, proposals without limitation, any proposal or offers from any corporationoffer to its stockholders) with respect to a merger, partnershipacquisition, person consolidation or other entity or group, other than Mergerco and its representatives and Affiliates, relating to (A) any acquisition or purchase of 25% or more of the assetssimilar transaction involving, or of over 25% of any class of Equity Securities of, the Company, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person beneficially owning 25% or more of any class of Equity Securities of the Company, or (C) any merger, consolidation, recapitalization, sale purchase of all or substantially all any significant portion of the assetsassets or any equity securities of, liquidation, dissolution Expert or similar transaction involving any of the Company Expert Subsidiaries (each any such transaction proposal or offer being hereinafter referred to herein as an "Acquisition Proposal")) or (ii) engage in any negotiations concerning, or agree provide any confidential information or data to, or have any discussions with, any person relating to or endorse any an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person (other than Mergerco and its representatives and Affiliates) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (v) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary confidentiality letter (a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable lawimplement an Acquisition Proposal. The Company shall immediately Expert will promptly cease and cause its advisors, agents and other intermediaries to cease be terminated any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. foregoing and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 6.9. Expert will notify Activision promptly if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 6.9 shall prohibit the Board of Directors of Expert from (bi) If furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide proposal to acquire Expert pursuant to a Payment Event merger, consolidation, share exchange, purchase of a substantial portion of the assets or stock, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of Expert determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders under applicable law as hereinafter definedadvised by outside legal counsel to Expert, (B) occursprior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Expert provides written notice to Activision to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which the Board of Directors of Expert determined in good faith was required to be executed in order for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law as advised by outside legal counsel to Expert), Expert keeps Activision informed of the status (not the terms) of any such discussions or negotiations; and (ii) to the extent applicable, complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company Board of Directors of Expert shall pay be permitted from time to Mergerco, AREH time to take the following actions in the circumstances described below: (i) to withdraw or modify in a material and Nybor, within three business days following such event, negative respect its approval or recommendation of this Agreement or the reasonable out-of-pocket expenses incurred by Mergerco, AREH and NyborMerger in a manner adverse to Activision or (ii) to approve or recommend or enter into an agreement with respect to an Acquisition Proposal if, in connection with each such case, (x) an Acquisition Proposal is publicly proposed, publicly disclosed or relating communicated to this Agreement Expert and (y) the MergerBoard of Directors of Expert determines in good faith, which shall include reasonable fees and expenses based on the advice of its outside legal counsel, accountants and that such action is required in order to comply with its fiduciary duties to the stockholders of Expert. No action by the Board of Directors of Expert permitted by the preceding sentence (each, a financial advisor to Mergerco, AREH and Nybor, up to "Permitted Action") shall constitute a maximum reimbursement amount of $500,000. "Payment Event" means the termination breach of this Agreement pursuant by Expert, provided that such Permitted Action shall give rise to the rights of Activision set forth in Section 12.1(a)(iv) or (v)8.3. hereof.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors to Subsidiaries to, (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, MergerSub) relating to (A) any acquisition or purchase of 2520% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2520% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2520% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company Company, or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 20% of the consolidated assets of the Company, other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would, or could reasonably be expected to herein as an impede, interfere with, prevent or materially delay the Merger or which would, or could reasonably be expected to, materially dilute the benefits to MergerSub of the transactions contemplated hereby (collectively, "Acquisition ProposalACQUISITION PROPOSALS"), or agree to or endorse any Acquisition Proposal, or (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesMergerSub) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities of the Company; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (ui) issuing one more publicly disclosing in a press releases regarding release, in a general manner, the Merger in compliance with Section 12.12 Company's permitted activities hereunder, (vii) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to Mergerco) concerning the Company and its businesses, properties or Assets to any person, corporation, entity or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (a "Third Party") in response to any unsolicited inquiry, proposal or offer, (w) engaging in discussions or negotiations with such a Third Party that has made such inquiry, proposal or offer, following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the Board, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (y) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, and/or (z) terminating this Agreement but in each case referred to in the foregoing clauses (u) through (z), only to the extent that the Independent Director shall have concluded in good faith upon the advice of legal counsel that such action is consistent with the Independent Director's (and the Board's) fiduciary duties to the stockholders of the Company under applicable law. The Company shall immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. "Payment Event" means the termination of this Agreement pursuant to Section 12.1(a)(iv) or (v).informational

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, relating Buyer) which constitutes or would reasonably be expected to lead to (A) any acquisition or purchase of 2530% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2530% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2530% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 30% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would reasonably be expected to herein as an interfere with in a material way, prevent or materially delay the Merger or which would reasonably be expected to materially dilute the benefits to Buyer of the transactions contemplated hereby (collectively, "Acquisition ProposalACQUISITION PROPOSALS"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesBuyer) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; providedPROVIDED, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vA) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect (with respect to duration and standstill provisions) than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoBuyer) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity a Third Party who has made or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (is seeking to initiate discussions with respect to a "Third Party") in response to any unsolicited inquiry, proposal or offerbona fide Acquisition Proposal, (wB) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (C) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yD) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 1.02(b) and/or Section 6.02 and/or (zE) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (uA) through (z), D) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action by the Board of Directors is consistent required in order to comply with the Independent Director's (and the Board's) fiduciary duties of the Board of Directors to the stockholders of the Company under applicable law; PROVIDED, FURTHER, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) until after reasonable notice to Buyer with respect to such action and that such Board of Directors shall continue to advise Buyer after taking such action and, in addition, if the Board of Directors of the Company receives an Acquisition Proposal, then the Company shall promptly inform Buyer of the terms and conditions of such proposal and the identity of the person making it. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. As used in this Agreement, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. term "Payment EventTHIRD PARTY" means any person, corporation, entity or "GROUP," as defined in Section 13(d) of the termination Exchange Act, other than Buyer or any of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.

Other Offers. (a) The Neither the Company nor any of its Subsidiaries shall not (whether directly or indirectly through advisors, agents or other intermediaries), nor shall the Company or any of its Subsidiaries authorize or permit any of its or its their officers, directors, agents, representatives representatives, advisors or advisors Subsidiaries to (i) solicit, initiate or take any action knowingly to facilitate the submission of inquiries, proposals or offers from any corporation, partnership, person or other entity or group, Third Party (as defined below) (other than Mergerco and its representatives and Affiliates, relating Buyer) which constitutes or would reasonably be expected to lead to (A) any acquisition or purchase of 2530% or more of the assets, consolidated assets of the Company and its Subsidiaries or of over 2530% of any class of Equity Securities of, equity securities of the CompanyCompany or any of its Subsidiaries, (B) any tender offer (including a self tender offer) or exchange offer that if consummated would result in any person Third Party beneficially owning 2530% or more of any class of Equity Securities equity securities of the CompanyCompany or any of its Subsidiaries, or (C) any merger, consolidation, recapitalizationbusiness combination, sale of all or substantially all of the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 30% of the consolidated assets of the Company other than the transactions contemplated by this Agreement, or (each such D) any other transaction being referred the consummation of which would reasonably be expected to herein as an interfere with in a material way, prevent or materially delay the Merger or which would reasonably be expected to materially dilute the benefits to Buyer of the transactions contemplated hereby (collectively, "Acquisition ProposalProposals"), or agree to or endorse any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing, or furnish to any Third Party any information with respect to its business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any other person Third Party (other than Mergerco and its representatives and AffiliatesBuyer) to do or seek any of the foregoing, or (iii) grant any waiver or release under any standstill or similar agreement with respect to any Equity Securities class of equity securities of the CompanyCompany or any of its Subsidiaries; provided, however, that the foregoing shall not prohibit the Independent Director or the Board (acting through the Independent Director) Company (either directly or indirectly through advisors, agents or other intermediaries) from (u) issuing one more press releases regarding the Merger in compliance with Section 12.12 (vA) furnishing information in writing or orally (through the Company's employees and advisors) pursuant to a customary an appropriate confidentiality letter (which letter shall not be less favorable to the Company in any material respect (with respect to duration and standstill provisions) than the Confidentiality Agreement, and a copy of which shall be provided for informational purposes only to MergercoBuyer) concerning the Company and its businesses, properties or Assets assets to any person, corporation, entity a Third Party who has made or "group," as defined in Section 13(d) of the Exchange Act, other than Mergerco (is seeking to initiate discussions with respect to a "Third Party") in response to any unsolicited inquiry, proposal or offerbona fide Acquisition Proposal, (wB) engaging in discussions or negotiations with such a Third Party that who has made such inquirya bona fide Acquisition Proposal, proposal or offer, (C) following receipt of a bona fide Acquisition Proposal (excluding Acquisition Proposals (1) where financing is required to consummate the transaction and the financing is not committed or not likely in the judgment of the Independent Director to be obtained by such Third Party on a timely basis or (2) that are not on terms the Independent Director or the BoardProposal, in its reasonable judgment (after consultation with its financial advisor and after taking into account all aspects of the proposal and the Third Party making the proposal and any proposed changes to this Agreement that may be proposed by Mergerco in response to such Acquisition Proposal) determines to be more favorable to stockholders of the Company from a financial point of view), (x) taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and Rule 14e-2(a) under the Exchange Act or otherwise making disclosure to its stockholders, (yD) following receipt of a bona fide Acquisition Proposal, failing to make or withdrawing or modifying its recommendation referred to in Section 4.6 hereof, 1.02(b) and/or Section 6.02 and/or (zE) terminating this Agreement taking any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction but in each case referred to in the foregoing clauses (uA) through (z), D) only to the extent that the Independent Director Board of Directors of the Company shall have concluded in good faith upon on the basis of written advice of legal from outside counsel that such action by the Board of Directors is consistent required in order to comply with the Independent Director's (and the Board's) fiduciary duties of the Board of Directors to the stockholders of the Company under applicable law; provided, further, that the Board of Directors of the Company shall not take any of the foregoing actions referred to in clauses (A) through (D) until after reasonable notice to Buyer with respect to such action and that such Board of Directors shall continue to advise Buyer after taking such action and, in addition, if the Board of Directors of the Company receives an Acquisition Proposal, then the Company shall promptly inform Buyer of the terms and conditions of such proposal and the identity of the person making it. The Company shall will immediately cease and cause its advisors, agents and other intermediaries to cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date hereof heretofore with respect to any of the foregoing. (b) If a Payment Event (as hereinafter defined) occurs, and shall use its reasonable best efforts to cause any such parties in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information in the possession of any such party or in the possession of any agent or advisor of any such party. As used in this Agreement, the Company shall pay to Mergerco, AREH and Nybor, within three business days following such event, the reasonable out-of-pocket expenses incurred by Mergerco, AREH and Nybor, in connection with or relating to this Agreement and the Merger, which shall include reasonable fees and expenses of legal counsel, accountants and a financial advisor to Mergerco, AREH and Nybor, up to a maximum reimbursement amount of $500,000. term "Payment EventThird Party" means any person, corporation, entity or "group," as defined in Section 13(d) of the termination Exchange Act, other than Buyer or any of this Agreement pursuant to Section 12.1(a)(iv) or (v)its affiliates.