Common use of Other Offers Clause in Contracts

Other Offers. Stockholder (in Stockholder’s capacity as such), and each of its Subsidiaries, if any, shall not, and shall use its reasonable best efforts to cause its officers, directors, employees or other agents, if any, not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or (ii) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse an Acquisition Proposal; provided, however, that Stockholder shall not be barred from entering into a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance with Section 6.03 of the Merger Agreement, the Board of Directors of the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder or any of its Subsidiaries, if any (or any of its or their Representatives), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof.

Other Offers. Stockholder (in Stockholder’s capacity as such)a) Seller shall cease, and each shall direct its and its respective Acquired Entities and Retained Subsidiaries’ directors, officers, employees, investment bankers and other representatives to cease, any discussions or negotiations with any Person that may be ongoing as of its Subsidiaries, if any, the date of this Agreement with respect to an Acquisition Proposal. Seller shall not, and shall use direct its reasonable best efforts to cause its directors, officers, directorsemployees, employees or investment bankers and other agents, if any, representatives not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or knowingly encourage the submission initiation of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or (ii) conduct or engage participate in any discussions with any third party regarding, or negotiations with, disclose furnish to any third party any non-public information relating in connection with, any Acquisition Proposal. Notwithstanding the foregoing, the board of directors of Seller and its representatives may in any event have discussions with any Person that hereafter makes an unsolicited Acquisition Proposal in order to clarify and understand the terms and conditions of such proposal and, if the board of directors of Seller receives an Acquisition Proposal that the board of directors of Seller determines in good faith and consistent with the exercise of its fiduciary duties (after consultation with independent legal counsel and a financial advisor) constitutes or is reasonably likely to lead to a Superior Proposal, then Seller may (A) furnish information to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate Person making such Acquisition Proposal and (B) participate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse discussions and negotiations with such Person regarding an Acquisition Proposal; provided, however, that Stockholder Seller provides notice in writing to Buyer of the general terms and conditions of the Acquisition Proposal and does not enter into a definitive agreement relating to such Acquisition Proposal until the expiration of a ten (10) day period following such notice to Buyer. (b) Except as expressly permitted by this Section 6.3, and subject to the proviso in subparagraph (a) hereof, Seller shall not be barred from entering enter into any contract or agreement (other than a voting confidentiality agreement, containing terms that are substantially the same as those contained herein (including termination concurrent ) with the termination of any related agreement and plan of merger), with any Third Party that submits respect to an Acquisition Proposal that(an “Acquisition Agreement”) unless Seller’s board of directors determines in good faith and consistent with the exercise of its fiduciary duties (after consultation with independent legal counsel and a financial advisor) that the Acquisition Proposal constitutes a Superior Proposal and Seller shall have, in accordance concurrently with Section 6.03 of the Merger entering into such Acquisition Agreement, the Board of Directors of the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder or any of its Subsidiaries, if any (or any of its or their Representativesterminated this Agreement pursuant to Section 11.1(d)(iii), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof.

Other Offers. Unless the Company is then permitted to take any action actions referred to in either of clauses (x) or (y) of Section 5.2(b) of the Merger Agreement, in which case, Stockholder shall be permitted to take any action then permitted to be taken by the Company pursuant to the Merger Agreement, Stockholder agrees that it shall not, directly or indirectly, solicit, initiate, knowingly encourage or knowingly facilitate the submission or an announcement of any Company Competing Proposal or the making of any inquiry, offer or proposal that would reasonably be expected to lead to any Company Competing Proposal or (i) participate in Stockholder’s capacity as such)any negotiations regarding any Company Competing Proposal, (ii) afford any Person access to the business, properties, assets, employees, officers, directors, books or records of the Company or any Company Subsidiary, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary, in each case, in connection with any Company Competing Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to any Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to any Company Competing Proposal, (iv) enter into any letter of intent, agreement in principle, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to, or any agreement or commitment (X) contemplating or otherwise providing for, any Company Competing Proposal or (Y) requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or to breach its obligations under the Merger Agreement, or (v) resolve, propose or agree to do any of the foregoing. Stockholder shall immediately cease (and shall cause each of its Subsidiaries, if any, shall notto cease), and shall use its reasonable best efforts to cause its officersRepresentatives to cease, directors, employees or other agents, if any, not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or (ii) conduct or engage in any and all discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse an Acquisition Proposal; provided, however, that Stockholder shall not be barred from entering into a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance Person conducted heretofore with Section 6.03 of the Merger Agreement, the Board of Directors of the respect to any Company has determined is a Superior Competing Proposal. Stockholder shall notify Parent promptly (but promptly, following the execution of this Agreement, inform its Representatives of Stockholder’s obligations under this Section 5.2. Without limiting the foregoing, Stockholder understands, acknowledges, and agrees that any breach of the obligations set forth in no event later than 24 hours) after receipt this Section 5.2 by Stockholder or any of its Subsidiaries, if any (or any of its or their Representatives), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access Representatives shall be deemed to the non-public business, properties, assets, books or records be a breach of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof.this Section 5.2

Other Offers. Stockholder (in Stockholder’s capacity as such), and each of its Stockholder’s Subsidiaries, if any, shall not, and nor shall use Stockholder or any of Stockholder’s Subsidiaries authorize or permit any of its reasonable best efforts to cause its or their officers, directors, employees or other agentsRepresentatives to, and Stockholder shall instruct, and cause each Stockholder Subsidiary to instruct, its or their Representatives, if any, not to, directly or indirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any inquiry, offer or proposal that could would reasonably be expected to lead to any Acquisition Proposal, or (ii) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering makingis seeking to make, or has made, an any Acquisition Proposal, or has agreed to endorse an Acquisition Proposal; provided, however, that Stockholder shall not be barred from entering into a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance with Section 6.03 of the Merger Agreement, the Board of Directors of the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder or any of its Stockholder’s Subsidiaries, if any (or any of its or their respective Representatives), of any Acquisition Proposal, any inquiry inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party in either case in connection with any Acquisition Proposal or any other indication inquiry, offer or proposal that a Third Party is considering making would reasonably be expected to lead to an Acquisition Proposal. In such notice, Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication inquiry, offer, proposal or request. Stockholder shall keep Parent reasonably informed, as promptly as practicableon a prompt basis, of the status and material terms of any such Acquisition Proposal, indication inquiry, offer, proposal or request, including the material resolved and unresolved issues related thereto and any material amendments or proposed amendments as to price and other material terms thereof.

Other Offers. Stockholder (in Stockholder’s capacity as such), and each of its Subsidiaries, if any, Neither KREG nor KHI shall not, and shall use its reasonable best efforts to cause its officers, directors, employees or other agents, if any, not to, directly or indirectly, (i) solicit, indirectly solicit or initiate any negotiations or take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead discussions with respect to any Acquisition Proposal, offer or (ii) conduct proposal to acquire all or engage in any discussions or negotiations with, disclose any non-public information relating to a substantial portion of the Company or any of its Subsidiaries to, afford access to the non-public business, propertiesproperties or capital stock of KOC, whether by merger, consolidation, share exchange, business combination, purchase of assets, books sale of capital stock or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse an Acquisition Proposalotherwise; provided, however, that Stockholder the foregoing shall not be barred in no way limit KREG or KHI with regard to unsolicited offers received following the public announcement of the transactions contemplated hereby a copy of which is attached hereto as EXHIBIT B. Following the receipt of any such offer which it determines in good faith following advice from entering into a voting agreementits financial and legal advisors to provide superior value to KHI to the transactions contemplated by this Agreement, containing KREG shall promptly provide written notice to KNHC and KDC of the terms that are substantially of such offer and shall, thereafter, have the same as those contained herein right, exercisable in its sole discretion upon two (including termination concurrent with 2) days prior written notice to KNHC and KDC, to terminate this Agreement at any time prior to the expiration of thirty (30) days from the date this Agreement is executed (unless such notice is delivered on the thirteeth (30th) day in which case the termination would occur on the thirty-second (32nd) day); provided that if KNHC or KDC notifies KREG in writing prior to the date of any related agreement and plan of merger)such termination that it is interested in making a higher offer, with any Third Party that submits KREG will extend the termination date for an Acquisition Proposal thatadditional fifteen (15) days and, in accordance with Section 6.03 of to the Merger Agreementextent necessary, the Board Closing Date would also be extended and, unless otherwise agreed to in writing by the parties hereto, at the end of Directors such fifteen (15) day period KREG shall either close the transactions contemplated herein or terminate this Agreement. Any termination of this Agreement by KREG pursuant to this SECTION 4.1 shall be without any liability or obligation on the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder part of KREG or any of its Subsidiaries, if any (Affiliates to KNHC or KDC or any of its or their Representatives)Affiliates, of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating subject only to the Company or any requirement that KREG deliver the following to KNHC not later than on the date of its Subsidiaries or for access to such termination: (a) the non-public business, properties, assets, books or records amount of the Company Initial Consideration in immediately available funds, plus interest thereon from the date hereof at a rate equal to 5% per annum; (b) $2 million in immediately available funds; and (c) the aggregate amount of up to $ 500,000 for the legal, accounting or any consultant fees incurred by KNHC, KDC or the members thereof in connection with the transactions contemplated hereby for the services of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx, LLP, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxxx & Xxxxx LLP and in writing and shall identify Xxxxxx Xxxxxxxx LLP during the Third Party makingperiod of February 2, and 1998 through the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms date of any such Acquisition Proposaltermination, indication subject to KREG's prior receipt of invoices therefor. In the event KREG terminates this Agreement pursuant to the provisions of this SECTION 4.1, Xxxxxx X. Xxxx shall have the immediate right, upon delivery of written notice to terminate his employment agreement and his covenant-not- to-compete with KREG, subject to the cancellation of all of his outstanding options (including vested options) for KREG common stock and the surrender of any shares (or requestthe sales proceeds therefrom) which were issued upon the exercise of any option, including which termination, cancellation and surrender shall provide for a complete waiver and release of KREG with respect to the material resolved payment of any severance or other form of compensation. In addition, the license granted to KREG to use the "Xxxx" name shall be terminated thirty (30) days thereafter, other than with respect to the use of the "Xxxx" name from a historical perspective. For a period of thirty (30) days following any such termination of his employment, Xxxxxx X. Xxxx agrees to cooperate with KREG with respect to the orderly transition of his prior powers and unresolved issues related thereto responsibilities to the successor Chairman of the Board and material amendments or proposed amendments as to price and other material terms thereofChief Executive Officer.

Other Offers. Stockholder (in Stockholder’s capacity as such), and each of its Subsidiaries, if any, shall not, and shall use its reasonable best efforts to cause its officers, directors, employees or other agents, if any, not to, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or (ii) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse an Acquisition Proposal; Proposal provided, however, that Stockholder shall not be barred from entering into a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance with Section 6.03 of the Merger Agreement, the Board of Directors of the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder or any of its Subsidiaries, if any (or any of its or their Representatives), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof.

Other Offers. Stockholder (in Stockholder’s capacity as such)a) The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and each of its Subsidiaries, if any, shall not, and that it shall use its reasonable best efforts to cause its officers, directors, employees or other agents, if any, and its Subsidiaries’ Representatives not to (and shall not authorize any of them to, ) directly or indirectly, : (i) solicit, initiate or knowingly encourage, facilitate or induce any inquiry that constitutes or may reasonably be expected to lead to, or the making, submission or announcement of, any Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate or encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to, any Acquisition Proposal; (iii) engage in negotiations with any Person with respect to or providing for any Acquisition Proposal; (iv) approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to Section 8.2(d) and Section 10.1(g)); or (v) enter into any letter of intent or contract relating to any Acquisition Proposal or transaction contemplated thereby (except as permitted pursuant to Sections 8.2(d) and 10.1(g)). The Company and its Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. (b) As soon as reasonably practicable (and, or (ii) conduct or engage in any discussions or negotiations withevent, disclose within 48 hours) after receipt of any non-public information relating to the Company Acquisition Proposal or any of its Subsidiaries to, afford access request for nonpublic information or inquiry which it reasonably believes could lead to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed the Company shall, to endorse an the extent the Company is able to do so without violating any confidentiality agreement (subject to the provisions of Section 8.2(c)(i)(A)(2)), provide Parent with oral and written notice of the material terms and conditions of such Acquisition Proposal; provided, howeverrequest or inquiry, and the identity of the Person or “Group” (as such term is defined under Section 13(d) of the Exchange Act) making any such Acquisition Proposal, request or inquiry and a copy of all written materials provided from the Person making such Acquisition Proposal in connection with such Acquisition Proposal, request or inquiry. Upon receipt of the Acquisition Proposal, request or inquiry, the Company shall, to the extent the Company is able to do so without violating any confidentiality agreement (subject to the provisions of Section 8.2(c)(i)(A)(2)), provide Parent as promptly as practicable (but in any event within 48 hours of receipt thereof) oral and written notice setting forth all such information as is reasonably necessary to keep Parent informed in all material respects of the status and details (including material amendments or proposed material amendments and copies of all correspondence and written materials reasonably relating to the Acquisition Proposal) of any such Acquisition Proposal, request or inquiry. (c) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Company receives an unsolicited, bona fide written Acquisition Proposal from a third party, other than as a result of a violation of this Section 8.2, that Stockholder shall (x) its Board of Directors has in good faith concluded (following the receipt of the advice of its outside legal counsel and its financial advisor), is, or is reasonably likely to result in, a Superior Proposal and (y) its Board of Directors has in good faith concluded (following receipt of the advice of its outside legal counsel and its financial advisor) that the failure to do any of the following would be reasonably likely to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, it may then take the following actions: (i) furnish nonpublic information to the third party making such Acquisition Proposal, provided that (A) (1) concurrently with furnishing any such nonpublic information to such party, its gives Parent written notice of its intention to furnish nonpublic information and (2) it receives from the third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on its behalf, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement; (B) contemporaneously with furnishing any such nonpublic information to such third party, it furnishes such nonpublic information to Parent (to the extent such nonpublic information has not be barred from been previously so furnished); and (ii) engage in negotiations with the third party with respect to the Acquisition Proposal, provided that concurrently with entering into negotiations with such third party, it gives Parent five (5) business days’ prior written notice of its intention to enter into negotiations with such third party. (d) In response to the receipt of a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance with Section 6.03 of the Merger AgreementSuperior Proposal, the Board of Directors of the Company may withhold, withdraw, amend or modify, or propose or resolve to withdraw, amend or modify its recommendation in favor of this Agreement and the Merger, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors or a committee thereof, a “Change of Recommendation”), if all of the following conditions in clauses (i) through (iv) are met: (i) an Acquisition Proposal that constitutes a Superior Proposal with respect to the Company has determined is been made and has not been withdrawn; (ii) the Company Stockholder Approval has not been obtained; (iii) it shall have (A) provided to Parent five (5) business days’ prior written notice (a “Competing Notice”) which shall state expressly (1) that it has received an Acquisition Proposal that constitutes a Superior Proposal. Stockholder shall notify Parent promptly , (but in no event later than 24 hours2) after receipt by Stockholder or to the extent the Company is able to do so without violating any confidentiality agreement (subject to the provisions of its Subsidiaries, if any (or any of its or their RepresentativesSection 8.2(c)(i)(A)(2)), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions ofof such Acquisition Proposal and the identity of the Person or Group making such Acquisition Proposal (including specifying the value in financial terms that the Board of Directors (or special committee thereof) of the Company has, after consultation with financial advisors, determined in good faith should be ascribed to any non-cash consideration offered under such Acquisition Proposal), indication and (3) that it intends to effect a Change of Recommendation and the manner in which it intends to do so, and (B) made available to Parent all nonpublic information (to the extent such nonpublic information has not been previously so furnished) made available to the Person or request. Stockholder Group making such Acquisition Proposal in connection with such Acquisition Proposal; (iv) it shall keep Parent informed, as promptly as practicable, not have breached in any material respect any of the status provisions set forth in this Section 8.2; it being understood and agreed that any material amendment or modification of such Acquisition Proposal shall result in such Acquisition Proposal being deemed a new Acquisition Proposal for which a two (2) business day period following a new Competing Notice shall be required under this Section 8.2(d); provided, that Parent shall have the right during the initial five (5) business day period or any subsequent two (2) business day period after receipt of the Competing Notice to offer to adjust the terms and conditions of this Agreement and the transactions contemplated hereby by tendering to the Company a new proposal for such terms and conditions. (e) Nothing contained in this Agreement shall prohibit the Board of Directors of the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided that the content of any such Acquisition Proposal, indication or request, including disclosure thereunder shall be governed by the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereofof this Agreement.

Other Offers. Stockholder (in Stockholder’s capacity as such)a) From and after the date hereof, and each the Company shall not nor shall it permit any of its SubsidiariesSubsidiaries to, if any, nor shall not, and shall use its reasonable best efforts to cause it authorize or permit any of its officers, directors, directors or employees or any investment banker, financial advisor, attorney, accountant or other agents, if any, not representative retained by it or any of its Subsidiaries to, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or knowingly take any other action designed to facilitate or encourage the submission of facilitate, any Acquisition Proposal or (ii) participate in any inquiries negotiation or discussion regarding any Acquisition Proposal; provided, however, that if at any time prior to the making Effective Time the Company's Board determines in good faith, after receipt of any advice from outside counsel, that it must provide such information or participate in such negotiations or discussions to comply with its fiduciary duties to the Company's shareholders under applicable law, the Company's Board may, in response to a proposal that it has determined, based on the terms of such proposal, including the proposed consideration per Share, could reasonably be expected to lead result in a Superior Proposal and that was not solicited by it and that did not otherwise result from a breach of this Section 6.04, and subject to the Company giving Buyer at least two business days written notice of its intention to do so, (x) furnish information with respect to the Company to any person pursuant to a customary confidentiality agreement containing terms no less restrictive than the terms of the Confidentiality Agreement, provided that a copy of all such information is delivered simultaneously to Buyer, and (y) engage in negotiations regarding such proposal. The Company shall promptly notify Buyer orally and in writing of any request for information or of any proposal in connection with an Acquisition Proposal, the material terms and conditions of such request or proposal (including a copy thereof, if in writing, and all other documentation and any related correspondence) and the identity of the person making such request or proposal. The Company will keep Buyer reasonably informed of the status and details (including amendments or proposed amendments) of such request or proposal on a current basis. The Company will immediately cease and terminate any existing solicitation, initiation, encouragement activity, discussion or negotiation with any persons conducted heretofore by it or its representatives with respect to the foregoing. (b) The Company (i) agrees not to release any Person (other than Buyer and its Affiliates) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreement to which it is a party and which is related to, or which could affect, an Acquisition Proposal and agrees that Buyer shall be entitled to enforce the Company's rights and remedies under and in connection with such agreements (other than any standstill agreement or similar agreement that is included in any confidentiality agreement referred to in clause (x) of the proviso to Section 6.04(a)) and (ii) conduct acknowledges that the provisions of clause (i) are an important and integral part of this Agreement. (c) For purposes of this Agreement, "Acquisition Proposal" means a proposal or engage intended proposal regarding any of (i) a transaction or series of transactions pursuant to which any Person (or group of Persons) other than Buyer and its subsidiaries acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more than twenty percent (20%) of the outstanding Shares of the Company, whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (ii) any discussions acquisition or negotiations proposed acquisition of, or business combination with, disclose the Company or any non-public information relating to of its Subsidiaries, by a merger or other business combination involving a third party (whether or not the Company or any of its Subsidiaries tois the entity surviving any such merger or business combination) or (iii) any other transaction pursuant to which any third party acquires or would acquire, afford access to directly or indirectly, control of assets (including for this purpose the non-public business, properties, assets, books or records outstanding equity securities of any Subsidiary) of the Company or any of its Subsidiaries to, for consideration equal to twenty percent (20%) or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that may be considering making, or has made, an Acquisition Proposal, or has agreed to endorse an Acquisition Proposal; provided, however, that Stockholder shall not be barred from entering into a voting agreement, containing terms that are substantially the same as those contained herein (including termination concurrent with the termination of any related agreement and plan of merger), with any Third Party that submits an Acquisition Proposal that, in accordance with Section 6.03 more of the Merger Agreement, the Board fair market value of Directors all of the Company has determined is a Superior Proposal. Stockholder shall notify Parent promptly (but in no event later than 24 hours) after receipt by Stockholder or any outstanding Shares on the date of its Subsidiaries, if any (or any of its or their Representatives), of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any related request for non-public information relating to the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party or any other indication that a Third Party is considering making an Acquisition Proposal. Stockholder shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request. Stockholder shall keep Parent informed, as promptly as practicable, of the status and material terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereofthis Agreement.