Common use of Other Potential Bidders Clause in Contracts

Other Potential Bidders. (a) The Company shall not, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its subsidiaries, solicit, facilitate, or encourage (including by way of furnishing information) the initiation of any inquires or proposals regarding a Third Party Acquisition (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"). Nothing contained in this SECTION 8.7(A) or any other provision of this Agreement shall prevent the Board if it determines in its good faith judgment, after consultation with outside legal counsel, that it is required to do so in order to discharge properly its fiduciary duties, from considering, negotiating, approving and recommending to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal which the Board of Directors of the Company determines in its good faith judgment (after consultation with its financial advisors) would result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any Acquisition Proposal meeting such criterion being referred to in this Agreement as a 50 "Superior Proposal"). Nothing in this Agreement shall prohibit the Company from complying with Item 1012 of Regulation M-A under the Exchange Act with respect to any tender offer. (b) The Company shall promptly, but in no event later than 24 hours, notify Parent after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. (c) If the Board receives a request for nonpublic information by a person that makes an unsolicited bona fide Acquisition Proposal and the Board determines that such Acquisition Proposal is a Superior Proposal, then, and only in such case, the Company may, subject to the execution of a confidentiality agreement substantially the same as that then in effect between the Company and Parent, provide such party with access to information regarding the Company. (d) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a party. (e) The Company shall ensure that the officers and directors and each employee that is aware of this Agreement of the Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company are aware of the restrictions described in this SECTION 8.7; and shall be responsible for any breach of this SECTION 8.7 by such bankers, advisors and representatives.

Other Potential Bidders. (a) The Company shall notExcept as set forth below, neither Seller, nor any of its respective officers, directors, employees, representatives or agents, shall, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its subsidiariesencourage, solicit, facilitateor initiate discussions or negotiations with, or encourage provide any information to, any corporation, partnership, person or other entity or group (including by way other than Buyer or any affiliate or associate of furnishing informationBuyer) the initiation concerning any merger, sale of assets, sale of any inquires equity interest in Seller or proposals regarding a Third Party Acquisition (any similar transaction involving Seller, or division of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"). Nothing contained in this SECTION 8.7(A) Seller or any other provision transaction that would involve the transfer or potential transfer of this Agreement control of Seller (other than, in each case, any such transaction or disposition relating solely to Excluded Assets or the Retained Business); provided, however, that nothing herein shall prevent the Board if it determines in its good faith judgmentfrom taking, after consultation with outside legal counseland disclosing to Seller's stockholders, that it is required to do so in order to discharge properly its fiduciary duties, from considering, negotiating, approving and recommending to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal which the Board of Directors of the Company determines in its good faith judgment (after consultation with its financial advisors) would result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction position contemplated by this Agreement (any Acquisition Proposal meeting such criterion being referred to in this Agreement as a 50 "Superior Proposal"). Nothing in this Agreement shall prohibit the Company from complying with Item 1012 of Regulation M-A Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect regard to any tender offer; provided, further, that the Board shall not recommend that the stockholders of Seller tender their shares of stock in connection with any such tender offer unless the Board by a majority vote determines that failing to take such action would constitute a breach of the Board's fiduciary duty to Seller's stockholders. (b) From and after the date hereof, Seller 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 substantially similar to the Confidentiality Agreement dated as of March 3, 2005 between Buyer and Seller, and may participate in discussions and negotiations with such entity or group concerning a merger, sale of assets, sale of any equity interest or similar transaction involving Seller or division of Seller or any other transaction that would involve the transfer or potential transfer of control of Seller (other than, in each case, any such transaction or disposition relating solely to Excluded Assets or the Retained Business), only if (i) such entity or group has submitted a written proposal to the Board relating to such transaction, (ii) one or more of Seller's financial advisors has advised the Board in writing that such proposal would yield a higher value to Seller's stockholders than the sale of the Purchased Assets pursuant to this Agreement, taking into account the financial responsibility of the party making such proposal and such party's ability to obtain the necessary approvals and consents for such transaction, and (iii) the Board by a majority vote determines that failure to furnish information or discuss or negotiate with such entity would constitute breach of the Board's fiduciary duty. The Company Board shall provide a copy of any such written proposal to Buyer promptly, but in no event later more than 24 hours, notify Parent hours after receipt thereof, and thereafter keep Buyer advised of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. (c) If the Board receives a request for nonpublic information by a person that makes an unsolicited bona fide Acquisition Proposal and the Board determines that such Acquisition Proposal is a Superior Proposal, then, and only in such case, the Company may, subject to the execution of a confidentiality agreement substantially the same as that then in effect between the Company and Parent, provide such party with access to information regarding the Company. (d) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Parent and Merger Sub) conducted heretofore material development with respect to any of the foregoing. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a partythereto. (e) The Company shall ensure that the officers and directors and each employee that is aware of this Agreement of the Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company are aware of the restrictions described in this SECTION 8.7; and shall be responsible for any breach of this SECTION 8.7 by such bankers, advisors and representatives.

Other Potential Bidders. (a) The Subject to the next sentence, the Company shall not, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its subsidiaries, solicit, facilitate, solicit or encourage (including by way of furnishing information) the initiation of any inquires or proposals regarding a Third Party Acquisition (any of the foregoing inquiries or proposals being referred to in this Agreement herein as an "Acquisition Proposal"). Nothing Notwithstanding the foregoing, nothing contained in this SECTION 8.7(A8.8(a) or any other provision of this Agreement shall prevent the Board if it determines in its good faith judgmentfaith, after consultation with with, and the receipt of advice from, outside legal counsel, that it is required to do so in order to discharge properly its fiduciary duties, from considering, negotiating, approving and recommending to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal Proposal, or providing information to any third party in connection therewith, which the Board of Directors of the Company determines in its good faith judgment (after consultation with its financial advisorsadvisors and legal counsel) would may reasonably result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any Acquisition Proposal meeting such criterion criterion, including those specified in the immediately preceding parenthetical proviso, being referred to in this Agreement herein as a 50 "Superior ProposalSUPERIOR PROPOSAL"). Nothing in this Agreement therein shall prohibit the Company from complying with Item 1012 of Regulation M-A Rules 14d-9 and 14e-2 under the Exchange Act with respect to any other tender offeroffers. (b) The Company shall promptly, but in no event later than 24 hours, notify Parent after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. (c) If the Board receives a request for material nonpublic information by a person that party who makes an unsolicited bona fide Acquisition Proposal and the Board determines that such Acquisition Proposal is proposal, if consummated pursuant to its terms would be a Superior Proposal, then, and only in such case, the Company may, subject to the execution of a confidentiality agreement substantially the same as similar to that then in effect between the Company and Parent, provide such party with access to information regarding the Company. (d) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than the Parent and Merger Subthe Purchaser) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a party. (e) The Company shall ensure that the officers and officers, directors and each employee that is aware of this Agreement employees of the Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company are aware of the restrictions described in this SECTION 8.7Section; and shall be responsible for any breach of this SECTION 8.7 8.8 by such bankers, advisors and representatives.

Other Potential Bidders. (a) The Company shall not, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its subsidiaries, solicit, facilitate, facilitate or encourage (including by way of furnishing information) the initiation of any inquires or proposals regarding a Third Party Acquisition (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"). Nothing Provided that the Company and the Board shall have complied with the first sentence of this SECTION 8.8(a), nothing contained in this SECTION 8.7(A8.8(a) or any other provision of this Agreement shall prevent the Board if it determines in its good faith judgmentfaith, after consultation with with, and the receipt of advice from, outside legal counsel, that it is required not to do so in order to discharge properly would be inconsistent with its fiduciary dutiesduties under applicable law, from considering, negotiating, approving and recommending to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal which that the Board of Directors of the Company determines in its good faith judgment (after consultation with its financial advisors) would result in to be a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any Acquisition Proposal meeting such criterion being referred to in this Agreement as a 50 "Superior Proposal"). Nothing in this Agreement SECTION 8.8 shall prohibit the Company from complying with Item 1012 of Regulation M-A Rules 14d-9 and 14e-2 under the Exchange Act with respect to any Superior Proposal that takes the form of a tender offer. (b) The Company shall promptly, but in no event later than 24 hours, notify Parent after receipt of any Acquisition Proposal or any request for nonpublic information relating to the 37 Company or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. (c) If the Board receives a request for material nonpublic information by a person that makes an unsolicited bona fide Acquisition Proposal and the Board determines that such Acquisition Proposal is proposal, if consummated pursuant to its terms would be a Superior Proposal, then, and only in such case, the Company may, subject to the execution of a confidentiality agreement substantially the same as identical to that then in effect between the Company and Parent, provide such party with access to information regarding the Company. (d) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a party. (e) The Company shall ensure that the officers and officers, directors and each employee that is aware of this Agreement employees of the Company and its subsidiaries and any investment banker or other advisor or representative retained by the Company are aware of the restrictions described in this SECTION 8.78.8; and shall be responsible for any breach of this SECTION 8.7 8.8 by such bankers, advisors and representatives.