Common use of Other Potential Acquirors Clause in Contracts

Other Potential Acquirors. (a) The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiaries or any business combination with the Company or its Subsidiaries. The Company may, directly or indirectly, furnish information and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or other entity or group pursuant to confidentiality agreements, and may participate in discussions and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board relating to any such transaction and the Company Board determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required to do so to comply with its fiduciary duties to stockholders under applicable law. The Company Board shall provide a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by the Company Board and shall keep Parent and Acquisition advised thereafter of material developments with respect thereto as promptly as reasonably practicable. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required to comply with its fiduciary duties to stockholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition (as defined in Section 6.1). Notwithstanding the foregoing, if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders under applicable law, the Company Board may approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only after a reasonable period following delivery of a written notice to Parent and Acquisition containing the information specified in Section 4.4(a) hereof including the identity of the person making such Superior Proposal. In addition, if the Company proposes to enter into an agreement with respect to any Third Party Acquisition, it shall concurrently with entering into such an agreement pay, or cause to be paid, to Parent the fee required by Section 6.3(a) hereof. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Merger.

Other Potential Acquirors. (a) The CompanyCompany agrees that it shall not, nor shall it permit any of its affiliates and their respective officerssubsidiaries to, directorsnor shall it authorize or permit any officer, employees, representatives and agents shall immediately cease any existing discussions director or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets employee of, or any equity interest ininvestment banker, attorney or other advisor or representative of, the Company or any of its Subsidiaries or any business combination with the Company or its Subsidiaries. The Company maysubsidiaries to, directly or indirectly, furnish information and access(i) solicit or initiate, in each case only in response to unsolicited requests thereforor encourage any inquiries regarding, to or the submission of, any corporationTakeover Proposal, partnership, person or other entity or group pursuant to confidentiality agreements, and may (ii) participate in discussions and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board relating to any such transaction and the Company Board determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required to do so to comply with its fiduciary duties to stockholders under applicable law. The Company Board shall provide a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by the Company Board and shall keep Parent and Acquisition advised thereafter of material developments with respect thereto as promptly as reasonably practicable. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations withregarding, or provide furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any corporation, partnership, person or other entity or group Takeover Proposal (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisitioniii) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required to comply with its fiduciary duties to stockholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to any Takeover Proposal or approve or resolve to approve any Takeover Proposal or (iv) grant any waiver or release under any Standstill or similar agreement; PROVIDED, HOWEVER, that nothing in this Section 5.2 shall prevent the Company or its Board of Directors from furnishing non-public information to, any Third Party Acquisition or entering into discussions or negotiations with, a person that makes an unsolicited written bona fide Takeover Proposal, if and only to the extent that (i) such person has made a bona fide Takeover Proposal in writing to the Board of Directors of the Company, (ii) the Board of Directors of the Company determines in good faith that such proposal would, if so completed, result in a Superior Proposal (as defined in Section 6.1below). Notwithstanding the foregoing, if (iii) the Board of Directors of the Company, after consultation with and based upon the advice of independent outside legal counsel, by a majority vote determines in good faith that it is necessary the failure to do so in order to comply with take such action would likely constitute a breach of its fiduciary duties to stockholders the holders of Company Common Stock under applicable law, and (iv) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Board of Directors receives from such person an executed confidentiality agreement in form and substance similar to the Confidentiality Agreement dated December 11, 2000 between the Company Board may approve or recommend a Superior Proposal and Parent (as defined belowthe "CONFIDENTIALITY AGREEMENT"). (b) or cause Upon execution of this Agreement, the Company to enter into an agreement will, and will cause its subsidiaries to, and will cause their respective officers, directors, employees, investment bankers, attorneys, and other advisors and representatives of the Company or any of its subsidiaries to, cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to a Superior any possible Takeover Proposal. (c) The Company will promptly (but in no case later than 48 hours) notify Parent of the existence of any proposal, discussion, negotiation or inquiry received by the Company regarding any Takeover Proposal, and the Company will promptly (but in no case later than 48 hours) communicate to Parent the terms of any proposal, discussion, negotiation or inquiry which it may receive regarding any Takeover Proposal (and will promptly, but in each no case only after a reasonable period following delivery of a written notice later than 48 hours, provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and Acquisition containing the information specified in Section 4.4(a) hereof including the identity of the person party making such Superior Proposalproposal or inquiry or engaging in such discussion or negotiation. In addition, if The Company will promptly (but in no case later than 48 hours) provide to Parent any non-public information concerning the Company proposes provided to any other person in connection with any Takeover Proposal which was not previously provided to Parent. The Company will keep Parent informed of the status and details of any such Takeover Proposal and of any amendments or proposed amendments to any Takeover Proposal and will promptly (but in no case later than 48 hours) notify Parent of any determination by the Company's Board of Directors that a Superior Proposal has been made. (d) Except as set forth in this Section 5.2(d), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent or Acquisition, the approval or recommendation by the Board of Directors of the Company or any such committee of this Agreement or the Merger, (ii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Takeover Proposal, (iii) enter into an any agreement with respect to any Third Party AcquisitionTakeover Proposal or (iv) resolve or agree to take any of the actions set forth in clauses (i) through (iii). Notwithstanding the foregoing, it shall concurrently subject to compliance with entering into such the provisions of this Section 5.2, at any time prior to obtaining the Stockholder Approval, the Board of Directors may (x) withdraw, modify or amend its approval or recommendation of this Agreement or the Merger, (y) approve or recommend an agreement payunsolicited written Superior Proposal, or cause (z) terminate this Agreement pursuant to be paid, to Parent Section 7.2(i) hereof following the fee required by Section 6.3(a) hereof. For purposes making of this Agreement, a "unsolicited written Superior Proposal" means any bona fide proposal , in each case, (1) if, and to acquirethe extent the Board of Directors, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of outside legal counsel, by a financial advisor majority vote determines in good faith that the failure to take such action would constitute a breach of nationally recognized reputation) to be more favorable its fiduciary duties to the Company's stockholders than holders of Company Common Stock under applicable law, and (2) provided that, concurrently with any such termination of this Agreement under clause (z) above, (a) the MergerCompany shall enter into a definitive agreement with respect to such Superior Proposal and (b) the Company shall pay the Termination Fee and Expenses in accordance with Section 7.5 hereof.

Other Potential Acquirors. (a) The Company, its ------------------------- affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiaries subsidiaries or any business combination with the Company or its Subsidiariessubsidiaries. The Company may, directly or indirectly, furnish information and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or other entity or group pursuant to confidentiality agreements, and may participate in discussions and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board relating to any such transaction and the Company Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required necessary to do so to comply with its fiduciary duties to stockholders shareholders under applicable law. The Company Board shall (i) provide a copy of any such written notice proposal and a summary of any oral proposal to Parent or Acquisition immediately after receipt thereof (and Acquisition describing in reasonable detail shall specify the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by and identify the Company Board person making such proposal), (ii) afford Parent a reasonable opportunity to respond to such proposal and shall (iii) keep Parent and Acquisition promptly advised thereafter of material developments any development with respect thereto as promptly as reasonably practicablethereto. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholdersshareholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required necessary to comply with its fiduciary duties to stockholders shareholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition (as defined in Section 6.1). Notwithstanding the foregoing, if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders under applicable law, the Company Board may approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only after a reasonable period following delivery of a written notice to Parent and Acquisition containing the information specified in Section 4.4(a) hereof including the identity of the person making such Superior Proposal. In addition, if the Company proposes to enter into an agreement with respect to any Third Party Acquisition, it shall concurrently with entering into such an agreement pay, or cause to be paid, to Parent the fee required by Section 6.3(a) hereof. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Merger.

Other Potential Acquirors. (a) The Company, its affiliates and their respective officersofficers and other employees with managerial responsibilities, directors, employees, representatives and agents shall immediately cease any existing and all discussions or negotiations, if any, negotiations with any parties conducted heretofore persons other than Parent and Acquisition with respect to any acquisition or purchase of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiaries any Subsidiary or any business combination with the Company or any Subsidiary (a “Third Party Acquisition”). Neither the Company nor any of its Subsidiaries. The affiliates shall, nor shall the Company mayor Subsidiaries authorize or permit any of their respective officers, directors, employees, representatives or agents to, directly or indirectly, furnish encourage, solicit, participate in or initiate discussions or negotiations with or provide any non-public information and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or group (other entity or group pursuant to confidentiality agreements, than Parent and may participate in discussions and negotiate with such entity or group Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving Third Party Acquisition. The Company shall promptly notify Parent in writing in the event the Company or any Subsidiary of its affiliates and their respective directors, officers, employees, agents and representatives receives any proposal or division inquiry concerning a Third Party Acquisition, including the terms and conditions thereof and the identity of the Company, if such entity person or group has submitted a written proposal submitting such proposal, and shall advise Parent from time to time of the status and any material developments concerning the same. (b) Except as set forth in this Section 4.2(b), the Company Board relating shall not withdraw its recommendation of the transactions contemplated hereby or approve or recommend, or cause the Company or Subsidiaries to enter into any such transaction and agreement with respect to, any Third Party Acquisition. Notwithstanding the foregoing, if the Company Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required to do so to comply with its fiduciary duties to stockholders under applicable law. The Company Board shall provide a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by the Company Board and shall keep Parent and Acquisition advised thereafter of material developments with respect thereto as promptly as reasonably practicable. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required to comply with its fiduciary duties to stockholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition (as defined in Section 6.1). Notwithstanding the foregoing, if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders under applicable lawduties, the Company Board may approve or recommend withdraw its recommendation of this Agreement and the transactions contemplated hereby, but only (i) after providing written notice to Parent (a “Notice of Superior Proposal (as defined belowProposal”) or cause advising Parent that the Company to enter into an agreement with respect to Board has received a Superior Proposal, but in each case only after a reasonable period following delivery specifying the material terms and conditions of a written notice to Parent such Superior Proposal and Acquisition containing the information specified in Section 4.4(a) hereof including the identity of identifying the person making such Superior Proposal. In addition, and (ii) if Parent does not, within five (5) business days after Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company proposes to enter into an agreement with respect to any Third Party Acquisition, it shall concurrently with entering into such an agreement pay, or cause Board by a majority vote determines in its good faith judgment to be paidat least as favorable to the Shareholders as such Superior Proposal; provided, however, that no withdrawal of the Company Board’s recommendation of this Agreement and the transactions contemplated hereby shall relieve the Company of its obligation to Parent the fee required by submit this Agreement and such transactions to its Shareholders for approval as provided in Section 6.3(a) hereof4.3. For purposes of this Agreement, a "“Superior Proposal" ” means any bona fide proposal to acquire, acquire directly or indirectly, indirectly for consideration consisting of cash and/or securities, securities more than fifty percent (50% %) of the Shares then outstanding or all or substantially all of the assets of the Company Company, and otherwise on terms which that the Company Board by a majority vote determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders Shareholders than the Merger.

Other Potential Acquirors. (a) The CompanyDuring the period commencing with the date of this Agreement and ending with the Effective Time or earlier termination of this Agreement in accordance with the provisions of Article 7 hereof, the Company shall not, and shall not permit any of its affiliates and their respective officerssubsidiaries to, directorsnor authorize or permit any officer, employeesdirector or employee of, representatives and agents shall immediately cease or any existing investment banker, attorney or other advisor or representative of, the Company or any of its subsidiaries (“Representatives”) to, directly or indirectly: (i) solicit, initiate, or encourage the submission of, any Takeover Proposal (as defined infra) or any inquiries with respect thereto, or take any other action to facilitate the making of, or that reasonably may be expected to lead to the making of, any Takeover Proposal, (ii) engage in negotiations or discussions with, or negotiationsfurnish any information or data to, if anyor afford access to the properties, with books or records of the Company or its subsidiaries to, any parties conducted heretofore third party relating to an actual or potential Takeover Proposal, or (iii) enter into any agreement with respect to any acquisition Takeover Proposal or recommend any Takeover Proposal. For purposes of all this Agreement, “Takeover Proposal” means any written proposal or offer (whether or not delivered to the Company’s shareholders generally) for a merger, consolidation, recapitalization, liquidation, dissolution or similar transaction, purchase of substantial assets, tender offer or other business combination involving the Company or any material portion of its subsidiaries, other than the assets oftransactions contemplated by this Agreement, or any equity interest in, the Company proposal or its Subsidiaries or offer to acquire in any business combination with the Company or its Subsidiaries. The Company maymanner, directly or indirectly, a substantial equity interest in, or a substantial portion of the assets or business of, the Company or any of its subsidiaries, other than pursuant to the transactions contemplated by this Agreement. (b) Notwithstanding anything to the contrary contained in Section 5.2(a) hereof or otherwise in this Agreement, and so long as the Company is otherwise in compliance with the provisions of Section 5.2(a) hereof, if the Company and its Board of Directors or the Special Committee prior to the Shareholders Meeting determine in good faith after discussion with their respective counsel that a specific unsolicited Takeover Proposal would likely result in a Superior Proposal (as defined in Section 5.2(d) hereof), and the Board of Directors or the Special Committee determines in good faith that the failure to participate in discussions or negotiations with or to furnish information to the Potential Acquiror (as defined infra), would be inconsistent with the Board of Directors’ fiduciary duties to the Company’s shareholders under applicable law, then the Company and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person its Board of Directors or other entity or group pursuant to confidentiality agreements, and Special Committee: (i) may participate in discussions or negotiations (including, as a part thereof, making any counterproposal they deem appropriate) with and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board relating furnish information to any third party making such transaction and the Company Board determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required to do so to comply with its fiduciary duties to stockholders under applicable law. The Company Board shall provide Takeover Proposal (a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by the Company Board and shall keep Parent and Acquisition advised thereafter of material developments with respect thereto as promptly as reasonably practicable. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking“Potential Acquiror”), and disclosing (ii) may take and disclose to the Company's stockholders, ’s shareholders a position contemplated with respect to any tender or exchange offer by a third party in connection with such Takeover Proposal, and amend or withdraw such position, pursuant to the requirements of Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent Act. (c) Any non-public information furnished by the Company Board from making such disclosure to a Potential Acquiror pursuant to Section 5.2(b) hereof shall be furnished pursuant to a confidentiality agreement in form and substance reasonably acceptable to the Company's stockholders as, in . (d) Neither the good faith judgment Board of Directors of the Company Board, after consultation with and based upon nor the advice of independent legal counsel, is required to comply with its fiduciary duties to stockholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board Special Committee shall not approve or recommend, or cause the Company propose to approve or recommend, or enter into any agreement (other than a confidentiality agreement meeting the requirements of paragraph (c) supra) with respect to, any Third Party Acquisition Takeover Proposal unless the Board and the Special Committee determine in good faith, after receiving advice from their financial advisor(s), that such Takeover Proposal would, if completed in accordance with its terms, result in a Superior Proposal. For purposes of this Agreement, “Superior Proposal” means a written Takeover Proposal made by a third party: (i) which the Board of Directors of the Company and the Special Committee determine, based on such matters as defined they reasonably deem pertinent, including, without limitation, the likelihood of consummation, the relevant trading markets, and the liquidity of any securities offered in Section 6.1connection with the Takeover Proposal, is superior as compared with the Merger from a financial point of view, and (ii) with respect to which, if the Takeover Proposal (x) is subject to a financing condition or (y) involves consideration that is not entirely cash or does not permit shareholders to receive the payment of the offered consideration in respect of all shares at the same time (unless there is a cash payment at closing of at least $2.61 per share), the Company’s Board of Directors and the Special Committee have been furnished with the written opinion of the financial advisor to the Special Committee that (in the case of clause (x)) the Takeover Proposal is readily financeable and (in the case of clause (y)) the Takeover Proposal provides a higher value per share, from a financial point of view, than the consideration per share to be paid to the Company’s shareholders pursuant to the Merger. Notwithstanding anything to the foregoingcontrary in this Section 5.2, no Takeover Proposal otherwise satisfying the criteria of a Superior Proposal shall be deemed to be a Superior Proposal if the Potential Acquiror or, in the case of an entity, any of its owners or key executives (collectively, “Unlicensed Persons”), does not possess, at the time said Takeover Proposal is made to the Company, all required regulatory licenses and approvals, including, without limitation, gaming industry licenses and approvals from all gaming regulators in all jurisdictions in which the Company and/or its affiliates then conduct business, necessary in order for said Potential Acquiror to lawfully conduct a business similar to that then conducted by the Company in each such jurisdiction, unless the Special Committee affirmatively determines, prior to the Company’s entering into any agreement (other than a confidentiality agreement meeting the requirements of paragraph (c) supra) with the Potential Acquiror with respect to said Takeover Proposal, that it is significantly more probable than not that all such applicable licenses and approvals will be obtained by all of the Unlicensed Persons prior to September 1, 2004. (e) Except as provided in this Section 5.2, neither the Board of Directors of the Company, after consultation with and based upon nor the advice of independent legal counselSpecial Committee, determines shall (x) withdraw or modify, or propose to withdraw or modify, in good faith that it is necessary a manner adverse to do so in order to comply with its fiduciary duties to stockholders under applicable lawParent or Merger Sub, the Board of Directors’ approval or recommendation of the Merger or this Agreement, (y) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement (other than a confidentiality agreement in connection with a potential Superior Proposal which is entered into by the Company Board may in accordance with Section 5.2(c) hereof) relating to any Takeover Proposal, or (z) approve or recommend recommend, or propose to approve or recommend, any Takeover Proposal. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement, in response to a Superior Proposal (as defined belowwhich was not solicited on or subsequent to the date of this Agreement by the Company, any of its subsidiaries or any of the Representatives, and which did not otherwise result from a breach of Section 5.2(a) or hereof, the Board of Directors of the Company may, subject to the immediately following two sentences, terminate this Agreement pursuant to and subject to the terms of Section 7.1(g) hereof and, concurrently with such termination, cause the Company to enter into an agreement with a Potential Acquiror with respect to a Superior ProposalProposal (a “Superior Proposal Agreement”), but only if the Board of Directors of the Company determines, after consultation with its counsel, that failure to terminate this Agreement and accept the Superior Proposal would be inconsistent with the fiduciary duties of the members of such Board of Directors to the Company’s shareholders under applicable law. Such actions may be taken by the Company’s Board of Directors only if it has delivered to Parent prior to or on the date of the Shareholders Meeting written notice of the intent of the Company’s Board of Directors to take the actions referred to in each case only after the preceding sentence, together with a reasonable period copy of the related Superior Proposal Agreement and a description of any terms of the Takeover Proposal not contained therein. The Company’s Board of Directors shall not terminate this Agreement and enter into a Superior Proposal Agreement pursuant to this Section 5.2(e) until the end of the third business day following delivery of a written such notice to Parent, after which, the Company’s Board of Directors, taking into account such matters as they deem pertinent (including, without limitation, the likelihood of consummation, the relevant trading markets, and the liquidity of any securities offered in connection with the Takeover Proposal, as well as any indications from Parent that it will make an alternative proposal), may proceed with such Superior Proposal and Acquisition containing enter into a Superior Proposal Agreement with the information specified Potential Acquiror in Section 4.4(aconnection therewith. (f) hereof including The Company promptly, and in any event within 48 hours, shall advise Parent orally and in writing of the submission of any Takeover Proposal, the identity of the person making any such Superior Takeover Proposal and the material terms of any such Takeover Proposal. In addition; provided, if however, that Parent shall not interfere with the Company, the Board of Directors of the Company proposes to enter into an agreement or the Special Committee with respect to any Third Party Acquisition, it such Takeover Proposal (including any deliberations related to any such Takeover Proposal or any matter related thereto). The Company shall concurrently with entering into such an agreement pay, or cause to be paid, to keep Parent the fee required by Section 6.3(a) hereof. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% fully informed of the Shares then outstanding or all or substantially all the assets status and material terms of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Mergerany such Takeover Proposal.

Other Potential Acquirors. (a) The Company, ------------------------- its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiaries subsidiaries or any business combination with the Company or its Subsidiariessubsidiaries. The Company may, directly or indirectly, furnish information and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or other entity or group pursuant to confidentiality agreements, and may participate in discussions and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board (whether or not in writing) relating to any such transaction and the Company Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required necessary to do so to comply with its fiduciary duties to stockholders shareholders under applicable law. The Company Board shall provide a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions copy of any such written proposal as promptly as reasonably practicable following prompt consideration and a summary of any oral proposal to Parent or Acquisition within 24 hours after receipt thereof by the Company Board and shall thereafter keep Parent and Acquisition promptly advised thereafter of any material developments development with respect thereto as promptly as reasonably practicablethereto. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholdersshareholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required necessary to comply with its fiduciary duties to stockholders shareholders under applicable law. (b) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition (as defined in Section 6.1below). Notwithstanding the foregoing, if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders shareholders under applicable law, the Company Board may approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only (i) after a providing reasonable period following delivery of a written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and Acquisition containing the information specified in Section 4.4(a) hereof including the identity conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not make within five days of Parent's receipt of the Notice of Superior Proposal. In addition, if an offer which the Company proposes Board, after consultation with its financial advisors, determines is superior to enter into an agreement with respect to any Third Party Acquisition, it shall concurrently with entering into such an agreement pay, or cause to be paid, to Parent the fee required by Section 6.3(a) hereofSuperior Proposal. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares shares of Company Common Stock then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders shareholders than the Merger.

Other Potential Acquirors. (a) The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiaries subsidiaries or any business combination with the Company or its Subsidiariessubsidiaries. The Company may, directly or indirectly, furnish information and access, in each case only in response to unsolicited requests therefor, to any corporation, partnership, person or other entity or group pursuant to confidentiality agreements, and may participate in discussions and negotiate with such entity or group concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary subsidiary or division of the Company, if such entity or group has submitted a written proposal to the Company Board (whether or not in writing) relating to any such transaction and the Company Board by a majority vote determines in its good faith judgment, after consultation with and based upon the advice of independent legal counsel, that it is required to do so to comply with its fiduciary duties to stockholders under applicable law. The Company Board shall provide a written notice to Parent and Acquisition describing in reasonable detail the material terms and conditions of any such proposal as promptly as reasonably practicable following prompt consideration thereof by the Company Board and shall keep Parent and Acquisition advised thereafter of material developments with respect thereto as promptly as reasonably practicable. Except as set forth above, neither the Company nor any of its affiliates shall, nor shall the Company authorize or permit any of its or their respective officers, directors, employees, representatives or agents to directly or indirectly, encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information to, any corporation, partnership, person or other entity or group (other than Parent and Acquisition, any affiliate or associate of Parent and Acquisition or any designees of Parent and Acquisition) concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company; provided, however, that nothing herein shall prevent the Company Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, further, that nothing herein shall prevent the Company Board from making such disclosure to the Company's stockholders as, in the good faith judgment of the Company Board, after consultation with and based upon the advice of independent legal counsel, is required to comply with its fiduciary duties to stockholders under applicable law. (ba) Except as set forth in this Section 4.4, the Company Board shall not approve or recommend, or cause the Company to enter into any agreement with respect to, any Third Party Acquisition (as defined in Section 6.1below). Notwithstanding the foregoing, if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that it is necessary to do so in order to comply with its fiduciary duties to stockholders shareholders under applicable law, the Company Board may approve or recommend a Superior Proposal (as defined below) or cause the Company to enter into an agreement with respect to a Superior Proposal, but in each case only (i) after a providing reasonable period following delivery of a written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and Acquisition containing the information specified in Section 4.4(a) hereof including the identity conditions of such Superior Proposal and identifying the person making such Superior Proposal and (ii) if Parent does not make within five days of Parent's receipt of the Notice of Superior Proposal. In addition, if an offer which the Company proposes Board, after consultation with its financial advisors, determines is superior to enter into an agreement with respect to any Third Party Acquisition, it shall concurrently with entering into such an agreement pay, or cause to be paid, to Parent the fee required by Section 6.3(a) hereofSuperior Proposal. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares shares of Company Common Stock then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Company Board determines in its good faith judgment (based on the advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders shareholders than the Merger. The Company shall use all reasonable best efforts to cause to be delivered to Parent a letter of Deloitte & Touche LLP, the Company's independent auditors, dated a date within two business days before the date on which the S-4 shall become effective and addressed to Parent, in form and substance reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the S-4.