Common use of Alternative Transaction Proposals Clause in Contracts

Alternative Transaction Proposals. (a) Subject to the provisions of this Section 8.3, at all times during the period commencing with the date hereof and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Closing Date (the “Post-Signing Period”), the Issuer shall not, and shall cause its Subsidiaries and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its other Representatives not to, enter into or approve any Alternative Transaction Proposal or Alternative Transaction Agreement. The Issuer shall notify the Investor orally and in writing promptly, and in any event within one (1) Business Day, of the receipt by the Issuer or any of its Subsidiaries or any of their respective Representatives, of any Alternative Transaction Proposal. The written notice shall include the identity of the Person making such Alternative Transaction Proposal, the material terms and conditions of the Alternative Transaction Proposal and copies of any written communications and documents setting forth the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and in any event within 24 hours). (b) The Issuer shall promptly notify the Investor orally and in writing upon a good-faith determination by the Board or any committee thereof, after consultation with its financial advisors and outside legal counsel, that any Alternative Transaction Proposal is a Superior Proposal. So long as the Issuer is in compliance with this Section 8.3, if the Issuer receives an Alternative Transaction Proposal which the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has not been withdrawn, the Board may terminate this Agreement in accordance with the terms of Section 7.1(c)(ii) to enter into an Alternative Transaction Agreement with respect to a Superior Proposal received after the date of this Agreement, but only if: (i) the Issuer shall have first provided prior written notice to the Investor that it is prepared to terminate this Agreement to enter into an Alternative Transaction Agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal and the identity of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor (including by making the Issuer’s Representatives reasonably available to negotiate) with respect to any changes to the terms of this Agreement proposed by the Investor for a reasonable period of time (consistent with the Board’s fiduciary duties) after the Investor’s receipt of such notice (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to the Investor and negotiations in good faith for a reasonable period of time (consistent with the Board’s fiduciary duties)); and (iii) the Board determines in good faith, after taking into account the changes to the terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, that such Superior Proposal continues to meet the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into such Alternative Transaction Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, that the Issuer shall not terminate this Agreement pursuant to the foregoing, and any purported termination pursuant to the foregoing shall be void and of no force or effect, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full in accordance with Section 7.2. (c) For purposes of this Agreement, the following terms shall have the meanings assigned below:

Alternative Transaction Proposals. (a) Subject Except as otherwise provided in this Section 8.10, MIC shall not, nor shall it authorize or knowingly permit any MIC Subsidiary to, and will use commercially reasonable efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit or knowingly initiate or encourage the making of any Alternative Transaction Proposal or (ii) other than with Parent, Merger Sub or their respective Representatives and other than to inform any Person of the provisions of this Section 8.3, at all times during the period commencing with the date hereof and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Closing Date (the “Post-Signing Period”), the Issuer shall not, and shall cause its Subsidiaries and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its other Representatives not to8.10, enter into into, continue or approve any Alternative Transaction Proposal or Alternative Transaction Agreement. The Issuer shall notify the Investor orally and in writing promptly, and otherwise participate in any event within one (1) Business Daydiscussions or negotiations regarding, of the receipt by the Issuer or furnish to any of its Subsidiaries or Person any of their respective Representativesmaterial non-public information in connection with, of any Alternative Transaction Proposal. The written notice shall include Notwithstanding the identity foregoing or any other provision of this Agreement to the contrary, if at any time prior to receipt of the Person making such MIC Stockholder Approval, MIC or any MIC Subsidiary receives an Alternative Transaction Proposal, MIC and the MIC Board may (directly or through their respective Representatives) (A) contact such Person and its advisors for the purpose of clarifying the proposal and any material terms and conditions and likelihood of the Alternative Transaction consummation thereof, so as to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and copies of any written communications and documents setting forth (B) if the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and MIC Board determines in any event within 24 hours). (b) The Issuer shall promptly notify the Investor orally and in writing upon a good-good faith determination by the Board or any committee thereof, after consultation with its financial advisors and outside legal counselcounsel and based on information then available that such Alternative Transaction Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, the MIC Board may (x) furnish information with respect to MIC and the MIC Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an executed confidentiality agreement; provided, that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable (and, in any event, within one (1) Business Day) after such information has been furnished to such Person (or its Representatives) and (y) participate in discussions or negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding such Alternative Transaction Proposal. (b) Except as otherwise provided in this Agreement, the MIC Board shall not, directly or indirectly, (i) (A) withdraw (or amend or modify in a manner materially adverse to Parent) or publicly propose to withdraw (or amend or modify in a manner materially adverse to Parent), the approval, recommendation or declaration of advisability of this Agreement and the transactions contemplated by this Agreement or (B) adopt a formal resolution to recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any Alternative Transaction Proposal is (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) adopt or approve, or publicly propose to adopt or approve, or allow MIC or any MIC Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding other than a confidentiality agreement referred to in Section 8.10(a) (each, an “Alternative Transaction Agreement”) (A) constituting or that could reasonably be expected to lead to any Alternative Transaction Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, but subject to MIC’s compliance in all material respects with the other provisions of this Section 8.10, as applicable, at any time prior to obtaining the MIC Stockholder Approval, the MIC Board may, in response to a Superior Proposal. So long as the Issuer is in compliance with this Section 8.3Proposal or an Intervening Event, make an Adverse Recommendation Change if the Issuer receives MIC Board determines that the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of MIC under applicable Law. (c) Without limiting Section 8.10(b), in response to an Alternative Transaction Proposal which that the MIC Board determines in good faithdetermines, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has not been withdrawnProposal, the Board MIC may terminate this Agreement in accordance pursuant to Section 10.1(h) [(Termination)] and this Section 8.10(c) and, concurrently with the terms of Section 7.1(c)(ii) to such termination, may enter into an Alternative Transaction Agreement with respect to a such Superior Proposal received after Proposal; provided, however, that MIC shall not terminate this Agreement pursuant to Section 10.1(h) [(Termination)] and this Section 8.10(c) unless MIC (i) complies with its obligations set forth in Section 8.10(d) and (ii) pays, or causes to be paid, to Parent the date of Company Termination Fee payable pursuant to Section 10.3(a)(i)(B) [(Termination Fees)] prior to or concurrently with such termination. (d) Notwithstanding anything to the contrary contained in this Agreement, but only if: the MIC Board shall not be entitled to either (x) make an Adverse Recommendation Change pursuant to Section 8.10(b) or (y) terminate this Agreement pursuant to Section 10.1(h) [(Termination)] and Section 8.10(c) [(Superior Proposal)], unless (i) the Issuer MIC shall have first provided to Parent three (3) days’ prior written notice advising Parent that the MIC Board intends to take such action and (ii) (A) during such three (3) day period, if requested by Parent and so long as Parent continues to negotiate in good faith, MIC shall have engaged in negotiations with Parent regarding any amendment to this Agreement proposed in writing by Parent, (B) MIC Board shall have considered any adjustments to this Agreement (including a change to the Investor price terms hereof) and the other agreements contemplated hereby that it is prepared to terminate this Agreement to enter into an Alternative Transaction Agreement may be irrevocably offered in writing by Parent no later than the third (3rd) day of such three (3)-day period and (C) (1) with respect to a Superior Proposal, which notice the MIC Board shall include have determined that the Alternative Transaction Proposal would continue to constitute a Superior Proposal if such adjustments to this Agreement were to be given effect and (2) with respect to an Intervening Event, the MIC Board shall have determined in good faith that failure to make an Adverse Recommendation Change would continue to be inconsistent with the directors’ fiduciary duties under applicable Law. (e) Notwithstanding anything to the contrary contained herein, MIC or MIC Board, directly or indirectly through their respective Representatives, shall be permitted to (i) take or disclose any position or disclose any information reasonably required under applicable Law or in compliance with or otherwise complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to MIC’s stockholders) and, to the extent referred to therein, Item 1012(a) of Regulation M-A promulgated under the Exchange Act with respect to any Alternative Transaction Proposal, (ii) make any “stop, look and listen” communication to MIC’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to MIC’s stockholders) or take a neutral or no position with respect to any Alternative Transaction Proposal, (iii) make any other disclosure to MIC’s stockholders that is reasonably required by applicable Law (it being understood that any disclosures permitted under this Section 8.10(e) shall not, in and of themselves, constitute an Adverse Recommendation Change or form a basis for Parent to terminate this Agreement pursuant to Section 10.1(d) [(Termination)]) and (iv) waive any “standstill” or similar provision in order to permit a Person to make an Alternative Transaction Proposal. (f) MIC shall as promptly as reasonably practicable (and in no event later than forty-eight (48) hours after receipt) notify Parent of any Alternative Transaction Proposal and the material terms and conditions of the transaction that constitutes any such Superior Proposal and the identity Alternative Transaction Proposal. MIC shall keep Parent reasonably informed of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor status (including by making the Issuer’s Representatives reasonably available to negotiate) with respect to any changes to the terms of this Agreement proposed by the Investor for a reasonable period of time (consistent with the Board’s fiduciary duties) after the Investor’s receipt of such notice (it being understood and agreed that any material change to the financial or other terms and conditions thereof) of such Superior Proposal shall require an additional notice to the Investor and negotiations in good faith for a reasonable period of time (consistent with the Board’s fiduciary duties)); and (iii) the Board determines in good faith, after taking into account the changes to the terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, that such Superior Proposal continues to meet the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into any such Alternative Transaction Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, that the Issuer shall not terminate this Agreement pursuant to the foregoing, and any purported termination pursuant to the foregoing shall be void and of no force or effect, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full in accordance with Section 7.2Proposal. (cg) For purposes Following completion of the Reorganization, references to the “MIC Board”, “MIC” and the “MIC Subsidiaries” in this AgreementSection 8.10 shall be deemed to be references to the “Company Board”, “the following terms shall have Company” and the meanings assigned below:“MIC Hawaii Companies”, respectively.

Alternative Transaction Proposals. (a) Subject to From the provisions date of this Section 8.3, at all times during the period commencing with the date hereof and continuing Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VII in accordance with its terms and the Closing Date Date, each Debtor agrees that, subject to Section 6.7(b), it shall not (i) seek, solicit, encourage, propose, assist, consent to, vote for, engage in substantive negotiations, or enter into any agreement in connection with or regarding, or participate in the formulation or preparation of any Alternative Transaction; provided, however, if any of the Debtors receive an unsolicited bona fide proposal or expression of interest regarding any Alternative Transaction during the Effective Period (as defined in the Restructuring Support Agreement) (“Post-Signing PeriodAlternative Transaction Proposal”), it shall promptly inform the Issuer shall not, and shall cause its Subsidiaries and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its other Representatives not to, enter into or approve Commitment Parties (as defined in the Restructuring Support Agreement) of any Alternative Transaction Proposal and any offer, arrangement, understanding or agreements related to any Alternative Transaction that such Debtor becomes aware of and promptly provide counsel to the Commitment Parties with a summary of the material terms thereof; and (ii) enter into any agreement to pursue any Alternative Transaction or other restructuring transaction for the Debtors or substantially all of their assets or equity interests. (b) Notwithstanding anything to the contrary in Section 6.7(a), nothing in this Agreement shall require the Debtors or the Debtors’ boards of directors (or comparable governing bodies), on the advice of legal counsel with respect to their Exercise of Fiduciary Obligation (defined below), to take any action, or to refrain from taking, any action (in each case, prior to Closing) with respect to the Restructuring Transactions, to the extent taking or failing to take such action would result in violation of applicable Law or their fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of their fiduciary duties shall not be deemed to constitute a breach of this Agreement. The Issuer To the extent any of the Debtors’ boards of directors (or comparable governing bodies) reasonably determines in good faith on the advice of legal counsel with respect to their Exercise of Fiduciary Obligation that the Debtors’ fiduciary obligations under applicable law require the Debtors to take any action, or refrain from taking any action, with respect to the Restructuring Transactions or that such action or inaction would violate applicable law (each an “Exercise of Fiduciary Obligation”), including actions or inactions that would constitute a breach under this Agreement, the Debtors may terminate this Agreement pursuant to Section 9.1(d)(ii) without incurring any liability to any one or more of the Backstop Parties under this Agreement (other than payment of the Termination Payment and Expense Reimbursement); provided that simultaneously with any Exercise of Fiduciary Obligation, the Debtors shall notify be required to terminate this Agreement pursuant to Section 9.1(d)(ii). In the Investor orally and in writing promptlyevent that the Debtors determine to terminate this Agreement as an Exercise of Fiduciary Obligation, and in any event within the Debtors shall provide written notice of such Exercise of Fiduciary Obligation to each of the Backstop Parties not more than one (1) Business DayDay after such exercise (email to counsel being sufficient). Notwithstanding anything to the contrary herein, nothing in this Section 6.7 shall create any additional fiduciary obligations on the part of the receipt by the Issuer Debtors or any of its Subsidiaries members, managers, or any of their respective Representatives, of any Alternative Transaction Proposal. The written notice shall include the identity officers of the Person making Debtors, in such Alternative Transaction Proposal, the material terms and conditions of the Alternative Transaction Proposal and copies of any written communications and documents setting forth the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and in any event within 24 hours). (b) The Issuer shall promptly notify the Investor orally and in writing upon a good-faith determination by the Board or any committee thereof, after consultation with its financial advisors and outside legal counselrespective capacities, that any Alternative Transaction Proposal is a Superior Proposal. So long as the Issuer is in compliance with this Section 8.3, if the Issuer receives an Alternative Transaction Proposal which the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has did not been withdrawn, the Board may terminate this Agreement in accordance with the terms of Section 7.1(c)(ii) exist prior to enter into an Alternative Transaction Agreement with respect to a Superior Proposal received after the date of the execution of this Agreement. Notwithstanding the foregoing, but only if: (i) each of the Issuer shall have first provided prior written notice to the Investor Debtors acknowledges that it is prepared to terminate its entry into this Agreement to enter into an Alternative Transaction Agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal and the identity of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor (including by making the Issuer’s Representatives reasonably available to negotiate) with respect to any changes to the terms of this Agreement proposed by the Investor for a reasonable period of time (Restructuring Transactions is consistent with the Board’s fiduciary duties) after the Investor’s receipt of such notice (it being understood applicable law and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to the Investor and negotiations in good faith for a reasonable period of time (consistent with the Board’s fiduciary duties)); and (iii) the Board determines in good faith, after taking into account the changes to the terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, that such Superior Proposal continues to meet the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into such Alternative Transaction Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, that as of the Issuer shall not terminate this Agreement pursuant to the foregoing, and any purported termination pursuant to the foregoing shall be void and date of no force or effect, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full in accordance with Section 7.2. (c) For purposes execution of this Agreement, the following terms shall have the meanings assigned below:.

Alternative Transaction Proposals. (a) Subject to From the provisions date of this Section 8.3, at all times during the period commencing with the date hereof and continuing Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VII in accordance with its terms and the Closing Date Date, each Debtor agrees that, subject to Section 6.7(b), it shall not (i) seek, solicit, encourage, propose, assist, consent to, vote for, engage in substantive negotiations, or enter into any agreement in connection with or regarding, or participate in the formulation or preparation of any Alternative Transaction; provided, however, if any of the Debtors receive an unsolicited bona fide proposal or expression of interest regarding any Alternative Transaction during the Effective Period (as defined in the Restructuring Support Agreement) (“Post-Signing PeriodAlternative Transaction Proposal”), it shall promptly inform the Issuer shall not, and shall cause its Subsidiaries and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its other Representatives not to, enter into or approve any Alternative Transaction Proposal or Alternative Transaction Commitment Parties (as defined in the Restructuring Support Agreement. The Issuer shall notify the Investor orally and in writing promptly, and in any event within one (1) Business Day, of the receipt by the Issuer or any of its Subsidiaries or any of their respective Representatives, of any Alternative Transaction Proposal. The written notice shall include the identity of the Person making such and any offer, arrangement, understanding or agreements related to any Alternative Transaction Proposal, that such Debtor becomes aware of and promptly provide counsel to the Commitment Parties with a summary of the material terms and conditions of the thereof; and (ii) enter into any agreement to pursue any Alternative Transaction Proposal and copies or other restructuring transaction for the Debtors or substantially all of any written communications and documents setting forth the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal their assets or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and in any event within 24 hours)equity interests. (b) The Issuer shall promptly notify Notwithstanding anything to the Investor orally and contrary in writing upon a good-faith determination by the Board or any committee thereofSection 6.7(a), after consultation with its financial advisors and outside legal counsel, that any Alternative Transaction Proposal is a Superior Proposal. So long as the Issuer is nothing in compliance with this Section 8.3, if the Issuer receives an Alternative Transaction Proposal which the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has not been withdrawn, the Board may terminate this Agreement in accordance with shall require the terms Debtors or the Debtors’ boards of Section 7.1(c)(ii) to enter into an Alternative Transaction Agreement directors (or comparable governing body), on the advice of legal counsel with respect to a Superior Proposal received after the date their Exercise of this AgreementFiduciary Obligation (defined below), but only if: to take any action or to refrain from taking any action (i) the Issuer shall have first provided in each case, prior written notice to the Investor that it is prepared to terminate this Agreement to enter into an Alternative Transaction Agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal and the identity of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor (including by making the Issuer’s Representatives reasonably available to negotiateClosing) with respect to any changes the Restructuring Transactions, to the terms extent taking or failing to take such action would result in violation of applicable Law or their fiduciary obligations under applicable Law, and any such action or inaction pursuant to such exercise of their fiduciary duties shall not be deemed to constitute a breach of this Agreement proposed by Agreement. To the Investor for a reasonable period extent any of time the Debtors’ boards of directors (consistent with the Board’s fiduciary dutiesor comparable governing bodies) after the Investor’s receipt of such notice (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to the Investor and negotiations reasonably determines in good faith for a reasonable period on the advice of time (consistent legal counsel with respect to their Exercise of Fiduciary Obligation that the Board’s Debtors’ fiduciary duties)); and (iii) obligations under applicable Law require the Board determines in good faith, after Debtors to take any action or refrain from taking into account the changes any action with respect to the terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, Restructuring Transactions or that such Superior Proposal continues to meet action or inaction would violate applicable Law (each an “Exercise of Fiduciary Obligation”), including actions or inactions that would constitute a breach under this Agreement, the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into such Alternative Transaction Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, that the Issuer shall not Debtors may terminate this Agreement pursuant to Section 9.1(d)(ii) without incurring any liability to any one or more of the foregoing, Backstop Parties under this Agreement (other than payment of the Expense Reimbursement and any purported termination payments to be made in connection with the Indemnification Obligations under Article VIII); provided that simultaneously with the Exercise of Fiduciary Obligation, the Debtors shall be required to terminate this Agreement pursuant to the foregoing shall be void Section 9.1(d)(ii) and of no force or effectto pay all fees, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full expenses and other obligations in accordance with Section 7.2. (c) For purposes of this Agreement, the following terms shall have the meanings assigned below:Section

Alternative Transaction Proposals. (a) Subject to the provisions of this Section 8.3, at all times during the period commencing with From the date hereof and continuing until through the earlier to occur of the Closing Date or the termination of this Agreement pursuant to in accordance with Article VII 9, each of Parent and the Closing Date (the “Post-Signing Period”), the Issuer shall its subsidiaries will not, and shall cause its Subsidiaries Parent will not permit any of the directors, officers, employees, agents and representatives of Parent and its subsidiaries to (and their respective officers and directors shall instruct such Persons not to), and shall use its reasonable best efforts directly or indirectly, take any action to cause its other Representatives not to(a) solicit, enter into initiate, encourage or approve facilitate the making of any Alternative Transaction Proposal or any inquiry with respect thereto; (b) engage in any discussions or negotiations or enter into any agreement, arrangement or understanding with respect to an Alternative Transaction Agreement. The Issuer shall notify the Investor orally and in writing promptly, and in Proposal; (c) disclose or provide any event within one (1) Business Day, of the receipt by the Issuer non-public information relating to Parent or any of its Subsidiaries subsidiaries to any Person with respect to an Alternative Transaction Proposal; (d) afford access to the properties, books or records of Parent or its subsidiaries to any of their respective RepresentativesPerson that has made, of or to Parent’s knowledge, is considering making any Alternative Transaction Proposal. The written notice shall include the identity ; (e) approve or recommend, or propose to approve or recommend, or execute or enter into any letter of the Person making such intent, agreement in principle, purchase agreement, merger agreement, option agreement or other agreement relating to an Alternative Transaction Proposal, the material terms and conditions ; or (f) propose publicly or agree to any of the foregoing relating to an Alternative Transaction Proposal and copies of any written communications and documents setting forth the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and in any event within 24 hours)Proposal. (b) The Issuer shall promptly notify Notwithstanding anything to the Investor orally contrary set forth in Section 6.8(a), at any time prior to obtaining the Parent Stockholder Approval (but not after), in response to an unsolicited bona fide written Alternative Transaction Proposal, Parent may, subject to compliance with this Section 6.8, and after giving Buyer written notice of such action, furnish non-public information to, or enter into discussions or negotiations with, any Person in writing upon connection with an unsolicited bona fide written Alternative Transaction Proposal received from such Person prior to the receipt of the Parent Stockholder Approval, so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such Person, (i) Parent’s Board of Directors, by a good-majority vote, determines in its good faith determination judgment, after consultation with outside legal counsel, that taking such action is necessary to comply with the directors’ fiduciary duties under applicable Law; (ii) Parent’s Board of Directors, by the Board or any committee thereofa majority vote, determines in its good faith judgment, after consultation with its financial advisors and outside legal counsel, that any such Alternative Transaction Proposal is a Superior Proposal. So long as the Issuer is in compliance with this Section 8.3, if the Issuer receives an Alternative Transaction Proposal which the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has not been withdrawn, the Board may terminate this Agreement in accordance with the terms of Section 7.1(c)(ii) reasonably expected to enter into an Alternative Transaction Agreement with respect to a Superior Proposal received after the date of this Agreement, but only if: (i) the Issuer shall have first provided prior written notice to the Investor that it is prepared to terminate this Agreement to enter into an Alternative Transaction Agreement with respect lead to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal and the identity of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered taking into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor (including by making the Issuer’s Representatives reasonably available to negotiate) with respect to account any changes revisions to the terms of this Agreement proposed by the Investor for a reasonable period Buyer after being notified pursuant to this Section 6.8; (iii) Parent is not then in breach of time (consistent with the Board’s fiduciary duties) after the Investor’s receipt of such notice (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to the Investor and negotiations in good faith for a reasonable period of time (consistent with the Board’s fiduciary duties))its obligations under this Section 6.8; and (iiiiv) Parent enters into, and receives from such Person, an executed confidentiality agreement on terms no less favorable to Parent than those contained in the Board determines Confidentiality Agreement and a copy of any information not previously provided to Buyer is provided as promptly as practicable to Buyer. Parent further agrees that it shall (A) promptly (and in good faithno event later than 24 hours after receipt of any Alternative Transaction Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making the Alternative Transaction Proposal and shall set forth the material terms thereof) Buyer after receipt of any Alternative Transaction Proposal, after taking into account the changes or any request for non-public information relating to Parent or its subsidiaries or for access to the properties, books or records of Parent or any of its subsidiaries, by any Person that has made or, to Parent’s knowledge, intends to make an Alternative Transaction Proposal; and (B) keep Parent informed of the status and material terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, that such Superior Proposal continues to meet the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into any such Alternative Transaction Agreement would Proposal or request (including any actual or proposed material amendments). Parent and its subsidiaries shall, and parent shall cause the directors, officers, employees, agents and representatives of Parent and its subsidiaries to, immediately cease and cause to be inconsistent with its fiduciary duties under applicable Law; providedterminated all discussions, negotiations and other communications, if any, that the Issuer shall not terminate this Agreement pursuant have taken place prior to the foregoing, and date hereof with any purported termination pursuant Person (other than Buyer) with respect to the foregoing shall be void and of no force or effect, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full in accordance with Section 7.2any Alternative Transaction Proposal. (c) For purposes of this Agreement, “Alternative Transaction Proposal” means any offer or proposal for, any indication of interest in, any (i) direct or indirect acquisition or purchase of a business or assets that constitute 20% or more of the following net revenues, net income or the assets of Seller and its subsidiaries, taken as a whole, (ii) direct or indirect acquisition or purchase of the outstanding equity interests of Parent or any of its subsidiaries (including Seller), which acquisition or purchase would reasonably be expected to prevent, materially delay or materially impede the consummation of the Contemplated Transactions, (iii) tender offer or exchange offer that, if consummated, would result in any Person beneficially owning (A) 20% or more of any class of equity securities of Parent or (B) any class of equity securities of any subsidiary of Parent (including Seller) and would reasonably be expected to prevent, materially delay or materially impede the consummation of the Contemplated Transactions, or (iv) merger, consolidation, spin-off, business combination, recapitalization, liquidation, dissolution or similar transaction involving Parent or any of its subsidiaries, in each case to extent such transaction would reasonably be expected to prevent, materially delay or materially impede the consummation of the Contemplated Transactions (other than the transactions involving Buyer contemplated by this Agreement). For purposes of this Agreement, “Superior Proposal” means any bona fide written Alternative Transaction Proposal on terms shall have that Parent’s Board of Directors determines in its good faith judgment after consultation with outside legal counsel and a financial adviser of recognized reputation, and taking into account all of the meanings assigned below:terms and conditions of such Alternative Transaction Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation, as well as any revisions to the terms of this Agreement proposed by Buyer after being notified pursuant to this Section 6.9, are more favorable to Parent’s stockholders than the terms of this Agreement (after taking into account any such revised terms).

Alternative Transaction Proposals. (a) . (a) Subject to the provisions of this Section 8.3, at all times during the period commencing with the date hereof and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Closing Date (the “Post-Signing Period”), the Issuer shall not, and shall cause its Subsidiaries and its and their respective officers and directors not to, and shall use its reasonable best efforts to cause its other Representatives not to, enter into or approve any Alternative Transaction Proposal or Alternative Transaction Agreement. The Issuer shall notify the Investor orally and in writing promptly, and in any event within one (1) Business Day, of the receipt by the Issuer or any of its Subsidiaries or any of their respective Representatives, of any Alternative Transaction Proposal. The written notice shall include the identity of the Person making such Alternative Transaction Proposal, the material terms and conditions of the Alternative Transaction Proposal and copies of any written communications and documents setting forth the material terms and conditions of such Alternative Transaction Proposal received by the Issuer from the Person making such Alternative Transaction Proposal or its Representatives or Affiliates, and the Issuer shall keep the Investor reasonably informed of the status and details of any such Alternative Transaction Proposal and any material developments with respect thereto on a prompt basis (and in any event within 24 hours). (b) The Issuer shall promptly notify the Investor orally and in writing upon a good-faith determination by the Board or any committee thereof, after consultation with its financial advisors and outside legal counsel, that any Alternative Transaction Proposal is a Superior Proposal. So long as the Issuer is in compliance with this Section 8.3, if the Issuer receives an Alternative Transaction Proposal which the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal and such Alternative Transaction Proposal has not been withdrawn, the Board may terminate this Agreement in accordance with the terms of Section 7.1(c)(ii) to enter into an Alternative Transaction Agreement with respect to a Superior Proposal received after the date of this Agreement, but only if: (i) the Issuer shall have first provided prior written notice to the Investor that it is prepared to terminate this Agreement to enter into an Alternative Transaction Agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal and the identity of the party making such Superior Proposal and attach a copy of the definitive agreement proposed to be entered into with respect to such Superior Proposal; (ii) the Issuer has negotiated in good faith with the Investor (including by making the Issuer’s Representatives reasonably available to negotiate) with respect to any changes to the terms of this Agreement proposed by the Investor for a reasonable period of time (consistent with the Board’s fiduciary duties) after the Investor’s receipt of such notice (it being understood and agreed that any material change to the financial or other terms and conditions of such Superior Proposal shall require an additional notice to the Investor and negotiations in good faith for a reasonable period of time (consistent with the Board’s fiduciary duties)); and (iii) the Board determines in good faith, after taking into account the changes to the terms of this Agreement committed to by the Investor and after consultation with its financial advisors and outside legal counsel, that such Superior Proposal continues to meet the definition of the term “Superior Proposal” and that the failure by it to terminate this Agreement to enter into such Alternative Transaction Agreement would be inconsistent with its fiduciary duties under applicable Law; provided, that the Issuer shall not terminate this Agreement pursuant to the foregoing, and any purported termination pursuant to the foregoing shall be void and of no force or effect, unless at or concurrently with such termination the Issuer pays the Break-Up Fee in full in accordance with Section 7.2. (c) For purposes of this Agreement, the following terms shall have the meanings assigned below: