Common use of Other Offers Clause in Contracts

Other Offers. From the date hereof until the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (a) take any action to solicit, initiate or encourage, or take any other action to facilitate, any Acquisition Proposal (as hereinafter defined) or (b) discuss or engage in negotiations with, or disclose any non-public information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer after receipt of any Acquisition Proposal, including a Superior Proposal, or any indication that any person is considering making an Acquisition Proposal, including a Superior Proposal, or any request for non-public information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that may be considering making, or has made, an Acquisition Proposal, including a Superior Proposal,

Other Offers. From the date hereof until the earlier of the purchase of the Shares or the termination hereofof this Agreement in accordance with its terms, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or and any other advisors or representatives ("Personnel"), related party will not, directly or indirectly, (ai) take any action to solicit, initiate or encourage, or take encourage any other action to facilitate, any Company Acquisition Proposal (as hereinafter defineddefined below) or (bii) discuss or unless otherwise required in accordance with the fiduciary duties of the Board under applicable law as advised by counsel to the Company, engage in discussions or negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company its Subsidiaries or afford access to the properties, books or records of the Company or any Subsidiary of the Company its Subsidiaries to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the a Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer OS after receipt of any Company Acquisition Proposal, including a Superior Proposal, or any indication that any person is considering making an Acquisition Proposal, including a Superior Proposal, Proposal or any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company its Subsidiaries or for access to the properties, books or records of the Company or any Subsidiary of the Company its Subsidiaries by any Person that may be considering making, or has made, an a Company Acquisition Proposal. For purposes of this Agreement, including "Company Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a Superior Proposal,merger, consolidation, reorganization, recapitalization or other business combination involving the Company or any of its Subsidiaries or the acquisition of any equity interest in, or a substantial portion of the assets of, the Company or any of its Subsidiaries, whether pursuant to a tender offer or otherwise, other than the transactions contemplated by this Agreement.

Other Offers. From Except in connection with the ------------ Apex Transaction, from the date hereof until the earlier to occur of the Effective Time and the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (ai) take any action to solicit, initiate or encourage, or take encourage any other action to facilitate, any Company Acquisition Proposal (as hereinafter defineddefined below) or (bii) discuss or unless otherwise required in accordance with the fiduciary duties of the Board of Directors under applicable law as advised by counsel to the Company, engage in negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company its Subsidiaries or afford access to the properties, books or records of the Company or any Subsidiary of the Company its Subsidiaries to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the a Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal. Except in connection with the Apex Transaction, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer RHCI after receipt of any Company Acquisition Proposal, including a Superior Proposal, Proposal or any indication that any person Person is considering making an a Company Acquisition Proposal, including a Superior Proposal, Proposal or any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company its Subsidiaries or for access to the properties, books or records of the Company or any Subsidiary of the Company its Subsidiaries by any Person that may be considering making, or has made, an a Company Acquisition Proposal. For purposes of this Agreement, including "Company Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a Superior Proposal,merger or other business combination involving the Company or any of its Subsidiaries or the acquisition of any equity interest in, or a substantial portion of the assets of, the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement and other than the Apex Transaction.

Other Offers. (a) From the date hereof until the termination hereof, the Company and its Subsidiaries and the their respective officers, directors, employees employees, representatives (including any investment banker, attorney or accountant) and other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (ai) take any action to solicit, initiate or encourage, or take any other action to facilitate, encourage any Acquisition Proposal (as hereinafter defined) or (bii) discuss or subject to the fiduciary duties of the Board of Directors under applicable law as advised by ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Company, engage in discussions or negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer after receipt of any Acquisition Proposal, including a Superior Proposal, Proposal or any indication that any person Person is considering making an Acquisition Proposal, including a Superior Proposal, Proposal or any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that may be considering making, or has made, an Acquisition Proposal, including which notification shall include the identity of the offeror and the terms and conditions of any Acquisition Proposal (but only to the extent the Board of Directors of the Company may disclose such information 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), and will keep Buyer fully informed (subject to such fiduciary duties) on a Superior current basis of the status and details of any such Acquisition Proposal,, indication or request. (b) For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other business combination involving the Company or any Subsidiary or the direct or indirect acquisition of any equity interest in, or a substantial portion of the assets of, the Company or any Subsidiary, other than the transactions contemplated by this Agreement, or a tender offer or exchange offer for at least 20% of the outstanding Shares or any other extraordinary transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the Merger.

Other Offers. From the date hereof until the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (a) take any action to solicit, initiate or encourage, or take any other action to facilitate, any Acquisition Proposal (as hereinafter defined) or (b) discuss or engage in negotiations with, or disclose any non-public information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person that may be considering making, or has made, an Acquisition Proposal or (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer after receipt of any Acquisition Proposal, including a Superior Proposal, or any indication that any person is considering making an Acquisition Proposal, including a Superior Proposal, or any request for non-public information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that may be considering making, or has made, an Acquisition Proposal, including a Superior Proposal,, (including the terms thereof and the identity of the third party) and will keep Buyer fully informed of the status and details of - 33 -

Other Offers. From the date hereof until the termination hereof, the Company and its the Subsidiaries and the officers, directors, employees or other agents of the Company and its the Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will not, directly or indirectly, (ai) take any action to solicit, initiate or encourage, or take any other action to facilitate, encourage any Acquisition Proposal (as hereinafter defined) or (bii) discuss or except as may be required in response to an unsolicited bona fide written Acquisition Proposal in order to comply with the fiduciary duties of the Board of Directors under applicable law as advised by Company counsel, engage in negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person. The Company will promptly (and in no event later than 24 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person that may be considering making, or has made, an making the relevant Acquisition Proposal or and set forth the material terms thereof) Buyer after (c) agree to approve, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1i) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation with its outside legal counsel, that the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer after receipt of any Acquisition Proposal, including a Superior Proposal, or any indication (ii) the Company has actual knowledge that any person Person is considering making an Acquisition Proposal, including a Superior Proposal, or (iii) the Company has received any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company Subsidiary, or for access to the properties, books or records of the Company or any Subsidiary of the Company Subsidiary, by any Person that may be the Company has actual knowledge is considering making, or has made, an Acquisition Proposal, including a Superior Proposal,. The Company

Other Offers. From the date hereof until Until the termination hereofof this Agreement, the Company and its Subsidiaries subsidiaries will not, and will not authorize or permit the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives ("Personnel"), will notsubsidiaries to, directly or indirectly, (ai) take any action to solicit, initiate or encourage, or take any other action to facilitate, encourage any Acquisition Proposal (as hereinafter defineddefined below) or (bii) discuss or subject to the fiduciary duties of the Board of Directors of the Company under applicable law, as advised in writing by Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel to the Company, engage in negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company its subsidiaries or afford access to the properties, books or records of the Company or any Subsidiary of the Company its subsidiaries to, any Person person that has advised the Company or otherwise publicized the fact that such person may be considering making, or that has made, an Acquisition Proposal or (c) agree to approveProposal; provided, recommend or enter into any agreement regarding, an Acquisition Proposal unless, in each of (a) through (c), all of the following events have occurred: (1) the Company has received an unsolicited, written, bona fide Acquisition Proposal from a third party; (2) nothing herein shall prohibit the Company's Board of Directors shall conclude in good faith, after consultation with its legal from taking and financial advisers, that such Acquisition Proposal, after taking into account whether it is reasonably likely disclosing to be financeable, is superior from a financial point of view to the terms of the transaction set forth in this Agreement; and (3) the Company's Board of Directors shall have determined, after consultation stockholders a position with its outside legal counsel, that respect to a tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the failure to take such action in respect of such Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal")Exchange Act. The Company will promptly notify Buyer Parent after receipt of any Acquisition Proposal, including a Superior Proposal, Proposal or any indication notice that any person is considering making an Acquisition Proposal, including a Superior Proposal, Proposal or any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company its subsidiaries or for access to the properties, books or records of the Company or any Subsidiary of its subsidiaries by any person that has advised the Company by any Person or otherwise publicized the fact that such person may be considering making, or that has made, an Acquisition Proposal and will keep Parent informed of the status and details of any such Acquisition Proposal, including indication or request. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for, or any written indication of interest in, a Superior Proposal,merger or other business combination involving the Company or any of its subsidiaries or the acquisition of any significant equity interest in, or a significant portion of the assets of, the Company or any of its subsidiaries, other than the transactions contemplated by this Agreement.

Other Offers. From the date hereof until the termination hereof, the Company and its Subsidiaries and the officers, directors, employees or other agents of the Company and its Subsidiaries including, without limitation, its respective counsel, accountants, investment advisors or other advisors or representatives will not ("Personnel"), will not, directly or indirectly, (ai) take any action to solicit, initiate or encourageknowingly encourage inquiries or proposals that constitute, or take any other action reasonably would be expected to facilitatelead to, any Acquisition Proposal (as hereinafter defined) or (bii) discuss or engage in discussions or negotiations with, or disclose any non-public nonpublic information relating to the Company or any Subsidiary of the Company or afford access to the properties, books or records of the Company or any Subsidiary of the Company to, any Person (or any of its agents or representatives) that the Company believes may be considering making, or has made, an Acquisition Proposal Proposal; provided that nothing contained in this Section 5.04 shall (A) prevent ---- the Company from furnishing non-public information to, or (c) agree to approveentering into discussions or negotiations with, recommend or enter into any agreement regarding, Person in connection with an unsolicited bona fide Acquisition Proposal unlessreceived from such Person so long as prior to furnishing non-public information to, in each of (a) through (c)or entering into discussions or negotiations with, all of the following events have occurred: such Person, (1) the Company has received receives from such Person an unsolicitedexecuted confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, written, bona fide Acquisition Proposal from a third party; (2) the Company's Board of Directors shall conclude in good faith, after consultation with its legal and financial advisers, has reasonably concluded that such Acquisition Proposal, after taking into account whether it is reasonably likely to be financeable, is superior from Proposal constitutes a financial point of view to the terms of the transaction set forth in this Agreement; Superior Proposal and (3) the Company's Board Company has otherwise complied with this Section 5.04 or (B) prevent the Company and its Subsidiaries from taking actions in the ---- ordinary course of Directors shall have determined, after consultation business consistent with its outside legal counsel, that the failure to take such action past practice and not in respect of such connection with any Acquisition Proposal would result in a substantial risk of liability for a breach of fiduciary duties of the members of the Company's Board of Directors under applicable law (a "Superior Proposal"). The Company will promptly notify Buyer as soon as possible, but in any event within 24 hours, after receipt of any Acquisition Proposal, including a Superior Proposal, or any indication that any person is considering making an Acquisition Proposal, including a Superior Proposal, Proposal or any request for non-public nonpublic information relating to the Company or any Subsidiary of the Company or for access to the properties, books or records of the Company or any Subsidiary of the Company by any Person that the Company believes may be considering making, or has made, an Acquisition Proposal. Such notice to Buyer shall indicate the identity of the Person making the Acquisition Proposal or request and in reasonable detail the terms thereof. If the financial or other material terms of such Acquisition Proposal are modified in any material respect, including then the Company shall notify Buyer as soon as possible, and in any event within 24 hours. The Company will immediately cease and cause its advisors and agents to cease any and all existing activities, discussions or negotiations regarding an Acquisition Proposal with any parties previously contacted; provided that the Company may inform such parties that this Agreement has been entered into and that the previously disclosed exploration of strategic alternatives process has been terminated. Nothing contained in this Agreement shall prohibit the Board of Directors of the Company from (i) taking and disclosing to the Company's shareholders a Superior Proposal,position with respect to a tender offer for the Shares by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, (ii) making such disclosure to the Company's shareholders as, in the judgment of the Board of Directors of the Company, based on the advice of outside counsel, is required under applicable law or under the rules of the NASDAQ Stock Market, or (iii) responding to any unsolicited proposal or inquiry solely by advising the person making such proposal or inquiry of the terms of this Section 5.04. From ----- the date hereof until the termination hereof, the Company (i) shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement (other than any entered into in the ordinary course of business not in connection with any Acquisition Proposal and other than as permitted under the proviso to the first sentence of this Section 5.04) to which ---- it or any of its Subsidiaries is a party and (ii) shall enforce, to the fullest extent permitted under applicable law, the provisions of any such agreement, including, without limitation, by seeking to obtain injunctions to prevent breaches thereof that are known to it and specific performance thereof.