Common use of Change in Recommendation Permitted in Certain Circumstances Clause in Contracts

Change in Recommendation Permitted in Certain Circumstances. At any time prior to receipt of the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company Proposal, and as a result thereof the Company Board determines in good faith, after consulting with outside legal counsel, that the failure to do so would be inconsistent with the Company Board’s fiduciary duties under applicable Law, then the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (x) the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves to take such action but in any event not less than three (3) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or other offer documents), (y) for three (3) Business Days following delivery of such notice, the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if the proposed Company Recommendation Change is in response to a Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by the Company Board in good faith after consulting with the Company’s financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day period that satisfies this Section 5.02(e)).

Change in Recommendation Permitted in Certain Circumstances. At any time prior (i) If, in response to receipt of the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company ProposalProposal received by the Company after the date of this Agreement that did not result from a material breach of Section 5.03(b), and as a result thereof the Company Board determines in good faith, after consulting consultation with the Company’s outside legal counselcounsel and financial advisor, that the a failure to do so make a Company Recommendation Change would be inconsistent with the Company Board’s its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: but only if (x) the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves determines to take such action but in any event not less than three five (35) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, include the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or and any financing and other offer related documents), (y) for three five (35) Business Days following delivery of such notice, notice (it being understood that any amendment or modification to any Superior Company Proposal that is the basis for such proposed Company Recommendation Change shall require a new notice of Company Recommendation Change and a new five (5)-Business Day period) the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if upon the end of such five (5)-Business Day period (as extended pursuant to clause (y)) the Company Board shall have considered in good faith any revisions to the terms of the Transactions proposed Company Recommendation Change is in response to a writing by Parent and shall have determined in good faith after consultation with the Company’s outside counsel and financial advisor (A) that the Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting Proposal would nevertheless continue to constitute a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by and (B) that the failure of the Company Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law. (ii) If, in response to an Intervening Event, the Company Board determines in good faith, after consultation with the Company’s legal counsel and financial advisor, that a failure to make a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval, the Company Board may make a Company Recommendation Change, but only if: (x) the Company notifies Parent in writing of its intention to take such action promptly after the Company Board determines to take such action but in any event not less than five (5) Business Days before taking such action, which notice shall specify the reasons therefor and include a description of the applicable Intervening Event, (y) for five (5) Business Days following delivery of such notice, the Company negotiates in good faith with Parent to make adjustments to the terms of the Transactions (to the extent Parent desires to negotiate) and (z) following the end of such five (5)-Business Day period, the Company Board shall have determined in good faith after consulting consultation with the Company’s legal counsel and financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms failure of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day period that satisfies this Section 5.02(e))Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law.

Change in Recommendation Permitted in Certain Circumstances. At any time prior (i) If, in response to receipt of the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company ProposalProposal received by the Company after the date of this Agreement that did not result from a material breach of Section 5.02(b), and as a result thereof the Company Board determines in good faith, after consulting consultation with the Company’s outside legal counselcounsel and financial advisor, that the a failure to do so make a Company Recommendation Change would be inconsistent with the Company Board’s its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: but only if (x) the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves determines to take such action but in any event not less than three five (35) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, include the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or and any financing and other offer related documents), (y) for three five (35) Business Days following delivery of such notice, notice (it being understood that any amendment or modification to any Superior Company Proposal that is the basis for such proposed Company Recommendation Change shall require a new notice of Company Recommendation Change and a new five (5)-Business Day period) the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if upon the end of such five (5)-Business Day period (as extended pursuant to clause (y)) the Company Board shall have considered in good faith any revisions to the terms of the Transactions proposed Company Recommendation Change is in response to a writing by Parent and shall have determined in good faith after consultation with the Company’s outside counsel and financial advisor, (1) that the Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting Proposal would nevertheless continue to constitute a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by and (2) that the failure of the Company Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law. (ii) If, in response to an Intervening Event, the Company Board determines in good faith, after consultation with the Company’s legal counsel and financial advisor, that a failure to make a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval, the Company Board may make a Company Recommendation Change, but only if: (x) the Company notifies Parent in writing of its intention to take such action promptly after the Company Board determines to take such action but in any event not less than five (5) Business Days before taking such action, which notice shall specify the reasons therefor and include a description of the applicable Intervening Event, (y) for five (5) Business Days following delivery of such notice, the Company negotiates in good faith with Parent to make adjustments to the terms of the Transactions (to the extent Parent desires to negotiate) and (z) following the end of such five (5)-Business Day period, the Company Board shall have determined in good faith after consulting consultation with the Company’s legal counsel and financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms failure of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day period that satisfies this Section 5.02(e))Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law.

Change in Recommendation Permitted in Certain Circumstances. At any time prior to receipt of the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and (A) the Company Board receives a Superior Company ProposalProposal or (B) a Company Intervening Event occurs, and as a result thereof the Company Board determines in good faith, after consulting with outside legal counsel, that the failure to do so would be inconsistent with the Company Board’s fiduciary duties under applicable Law, then the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (x) the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves to take such action but in any event not less than three (3) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or other offer documents), or in the case of a Company Intervening Event, a reasonably detailed description of such Company Intervening Event and the reasons for the proposed Company Recommendation Change, (y) for three (3) Business Days following delivery of such notice, the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if the proposed Company Recommendation Change is in response to a Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by the Company Board in good faith after consulting with the Company’s financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) two-Business Day period that satisfies this Section 5.02(e)).

Change in Recommendation Permitted in Certain Circumstances. At any time prior to receipt of If the Company Stockholder Approval, if and the Company has Subsidiaries have complied with all of its their obligations in all material respects under this Section 5.024.8, and the Company Board receives a Superior Company Proposal, Proposal and as a result thereof the Company Board determines in good faith, faith and after consulting consultation with outside legal counsel, counsel and its financial advisors that the a failure to do so act would be inconsistent with their directors’ duties under Maryland law, then before receipt of the Company Board’s fiduciary duties under applicable Law, then Stockholder Approval (and in no event after receipt of the Company Stockholder Approval) the Company Board may make a Company Recommendation ChangeChange and/or, subject to compliance with the requirements of this Section 4.8(e), and Sections 9.1(b) and 9.1(d), terminate this Agreement in order to enter concurrently into a definitive agreement providing for the implementation of such Superior Company Proposal. Notwithstanding the foregoing, the The Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e4.8(e) or terminate this Agreement as permitted by the preceding sentence unless: (x1) the Company notifies Parent Wintrust in writing of its intention to take such action, promptly after the Company Board resolves to take such action but in any event not less than three (3) Business Days five business days before taking such action, which notice shall include, in the case of a Superior Company Proposal, include the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or other offer documents), (y2) for three (3) Business Days five business days following delivery of such notice, the Company negotiates in good faith with Parent Wintrust with respect to any revised proposal from Parent Wintrust in respect of the terms of the Transactions Merger and the other transactions contemplated hereby (to the extent Parent Wintrust desires to negotiate) with the intent of enabling the Parties to engage in good faith negotiations so that the Merger and other transactions contemplated hereby may be effected and (z3) if the proposed Company Recommendation Change is in response to a Superior Company Proposal, Parent Wintrust does not make, within such three (3) Business Day five-business day period, an offer (not subsequently withdrawn) that causes is at least as favorable to the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposalstockholders of the Company, as determined by the Company Board in good faith after consulting with based on the advice of the Company’s independent financial advisor and outside legal counseladvisor, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day five-business day period that satisfies this Section 5.02(e4.8(e)).

Change in Recommendation Permitted in Certain Circumstances. At any time prior Prior to receipt of obtaining the Company Stockholder Approval, if the Company has complied with all Board shall be permitted to make a Company Recommendation Change solely in the manner and to the extent hereafter expressly set forth in this Section 5.02(e) in response to either (i) a Company Superior Proposal that did not result from a violation in any material respect of its obligations in all material respects under this Section 5.02, and or (ii) a Company Intervening Event, in each case only if the Company Board receives shall have determined in good faith, After Consultation, that a failure to do so would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Notwithstanding any other provision of this Agreement, at no time shall the Company Board be permitted to make a Company Recommendation Change, unless: (A) the Company has given Parent at least four (4) Business Days’ prior written notice that the Company Board intends to make a Company Recommendation Change (a “Company Recommendation Change Notice”), which notice shall include, (1) if Company Recommendation Change is to be made in response to a Superior Company Proposal, the identity of the Person making the Superior Company Proposal, the material terms thereof and as a result thereof true and complete copy of the proposed agreement or proposal with respect to such Superior Company Proposal (including all proposed material transaction documents in connection therewith and material exhibits and schedules, but redacting, if required by any financing source, the amount of any commitment fee and financing fee information), or (2) if the Company Recommendation Change is to be made in respect of a Company Intervening Event, a reasonable summary of the material underlying facts, conditions and circumstances giving rise to the occurrence and continuing existence of such Company Intervening Event, (B) during the four (4) Business Day period commencing on the date of receipt by Parent of the Company Recommendation Change Notice, the Company and its Representatives shall negotiate in good faith with Parent and its Representatives, to the extent Parent desires to negotiate, so that Parent may propose in writing a binding offer to make such adjustments to the terms and conditions of this Agreement to enable the Company Board determines to determine that (x) the Superior Company Proposal referred to in the Company Recommendation Change Notice no longer constitutes a Superior Company Proposal or (y) the failure to make a Company Recommendation Change in respect of the Company Intervening Event referred to in the Company Recommendation Change Notice would no longer be inconsistent with the fiduciary duties of the Company Board under applicable Law, and (C) at the end of such four (4) Business Day period, the Company Board shall have considered in good faith and given effect to the terms of such binding offer and shall have determined in good faith, after consulting with outside legal counselAfter Consultation, that that, (x) the Superior Company Proposal, referred to in the Company Recommendation Change Notice, continues to constitute a Superior Company Proposal or (y) the failure of the Company Board to do so make a Company Recommendation Change in respect of the Company Intervening Event referred to in the Company Recommendation Change Notice would continue to be inconsistent with the Company Board’s fiduciary duties under applicable Law, then Law (it being hereby acknowledged and agreed that that any proposed amendment or modification to the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend material terms of any Superior Company Proposal pursuant submitted to this Section 5.02(e) unless: (x) the Company notifies Parent in writing of its intention by any Person who previously submitted to take such action, promptly after the Company Board resolves to take such action but in any event not less than three (3) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or other offer documents), (y) for three (3) Business Days following delivery of such notice, the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if the proposed Company Recommendation Change is in response to a Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by the Company Board in good faith after consulting with the Company’s financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms of any such Superior Company Proposal shall require a new written notice to Parent from the Company and an additional two a three (23) Business Day notice and negotiation period that satisfies shall thereupon commence anew under this Section 5.02(e)). For purposes of clarification and certainty, under no circumstances shall the Company be permitted to terminate this Agreement in respect of a Superior Company Proposal unless it shall have concurrently complied in all respects with the requirements of this Section 5.02(e) and Section 8.01(f) (Termination by the Company before Receipt of Company Stockholder Approval), and under no circumstances shall the Company be permitted to terminate this Agreement in respect of, or due to any Company Recommendation Change made by the Company Board solely in response to, a Company Intervening Event. The Company hereby expressly confirms and agrees that the immediately preceding sentence of this Section 5.02(e), to the extent it relates to a Company Recommendation Change solely in response to or in respect of a Company Intervening Event, has been agreed to by the parties hereto pursuant to Section 146 of the DGCL.

Change in Recommendation Permitted in Certain Circumstances. At any time prior Prior to receipt obtaining the approval of the Company’s stockholders to the Authorized Shares Proposal and the Nasdaq Approval Proposal, the Board of Directors shall be permitted to make a Company Stockholder ApprovalRecommendation Change solely in the manner and to the extent hereafter expressly set forth in this Section 4(k)(v) in response to (1) a Superior Proposal that has been made and has not been withdrawn and continues to be a Superior Proposal and such Superior Proposal did not result from a violation in any material respect of this Section 4(k) or (2) an Intervening Event that has occurred, in each case only if the Company has complied with all Board of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company Proposal, and as a result thereof the Company Board Directors determines in good faith, after consulting consultation with its financial advisor and outside legal counsel, that the failure to do so take such action would be inconsistent with the Company Board’s fiduciary duties of the Board of Directors under applicable Lawlaw. Notwithstanding any other provision of this Agreement to the contrary, then at no time shall the Company Board may of Directors be permitted to make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (xA) the Company notifies Parent the Buyer in writing of its intention to take such actionduly convene a meeting of the Board of Directors to consider making a Company Recommendation Change, promptly which notice to the Buyer shall be delivered by the Company within twenty four (24) hours after the Company Board resolves of Directors determines to take convene such action meeting, but in any event case, not less than three four (34) Business Days before taking such actionmeeting is convened, and which notice shall include, (I) if the meeting of the Board of Directors at which a Company Recommendation Change is to be considered is in the case of response to a Superior Company Proposal, the identity of the offeror Person making the Superior Proposal, the material terms and conditions of the Superior Proposal (including the consideration offered therein) and a true and complete copy of all documentation comprising the most current version of such Superior Company Proposal (including all proposed transaction agreements, including any proposed agreement or other offer documentsexhibits and schedules), it being understood and agreed that any material amendment to the financial terms or any other material term of such Superior Proposal (yit being understood that any change to the amount or form of consideration shall be deemed to be material) shall require a new notice and a new four (4) Business Day period, or (II) if the meeting of the Board of Directors at which a proposed Company Recommendation Change is to be considered is in response to an Intervening Event, a detailed description of all underlying facts, conditions and circumstances giving rise to the occurrence and continuing existence of such Intervening Event, it being understood and agreed that any material development in an Intervening Event shall require a new notice and a new four (4) Business Day period, (B) for three four (34) Business Days following delivery receipt by the Buyer of such notice, the Company negotiates and its Representatives shall negotiate in good faith with Parent the Buyer and its Representatives with respect to any revised bona fide proposal from Parent in respect of the Buyer to amend or modify the terms of this Agreement (if the Transactions (to Buyer, following its receipt of such notice from the extent Parent Company, has notified the Company in writing that it desires to negotiatenegotiate such amendment or modification) and (zC) if the meeting of the Board of Directors at which a proposed Company Recommendation Change is to be considered is in response to (I) a Superior Company Proposal, Parent the Buyer does not make, within such three four (34) Business Day periodperiod of good faith negotiation with the Buyer, an a binding offer in the form of a proposed definitive amendment to this Agreement (not subsequently withdrawnwhich, if accepted by the Company, shall become a binding definitive agreement between the Buyer and the Company) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposalthat, as determined by the Company Board of Directors in good faith faith, after consulting consultation with the Company’s its financial advisor and outside legal counsel, is at least as favorable to the Company and its stockholders as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms Proposal, or (bII) material amendment to an Intervening Event, the other material terms of any Buyer does not make, within such Superior Company Proposal shall require a new written notice from the Company and an additional two four (24) Business Day period that satisfies of good faith negotiation, a binding offer in the form of a proposed definitive amendment to this Section 5.02(e))Agreement (which, if accepted by the Company, shall become a binding definitive agreement between the Buyer the Company) that, as determined by the Board of Directors in good faith, after consultation with its financial advisor and outside legal counsel, eliminates the need for the Board of Directors to consider making and to make a Company Recommendation Change.

Change in Recommendation Permitted in Certain Circumstances. At any time prior Prior to receipt of obtaining the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives may make a Company Adverse Recommendation Change solely in the manner and to the extent hereafter expressly set forth in this Section 4.2(e) in response to (x) a Company Superior Proposal that did not result from a violation of this Section 4.2 or (y) a Company ProposalIntervening Event, and as a result thereof in each case only if the Company Board determines in good faith, after consulting with outside legal counselAfter Consultation, that the a failure to do so would be inconsistent with the Company Board’s fiduciary duties of the Company Board under applicable Law. Notwithstanding any other provision of this Agreement, then at no time may the Company Board may make a Company Adverse Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (xi) the Company notifies Parent in writing of its intention to take such actionduly convene a meeting of the Company Board to consider making a Company Adverse Recommendation Change, promptly which notice to Parent must be delivered by the Company within 24 hours after the Company Board resolves determines to take convene such action meeting, but in any event case, not less than three (3) five Business Days before taking such actionmeeting is convened, and which notice shall will include, (x) if the meeting of the Company Board at which a Company Adverse Recommendation Change is to be considered is in the case of response to a Company Superior Company Proposal, the identity of the offeror Person making the Company Superior Proposal and a true and complete copy of all documentation comprising the most current version of such Company Superior Company Proposal (including any all proposed agreement transaction agreements, including exhibits and schedules) or other offer documents), (y) if the meeting of the Company Board at which a proposed Company Adverse Recommendation Change is to be considered is in response to a Company Intervening Event, a detailed description of all underlying facts, conditions and circumstances giving rise to the occurrence and continued existence of the Company Intervening Event, (ii) for three (3) five Business Days following delivery receipt by Parent of such notice, the Company negotiates and its Representatives negotiate in good faith with Parent and its Representatives with respect to any revised proposal from Parent in respect of to amend or modify the terms of the Transactions this Agreement (to the extent Parent has notified the Company that it so desires to negotiate) negotiate such amendment or modification), and (ziii) if the meeting of the Company Board at which a proposed Company Adverse Recommendation Change is to be considered is in response to (x) a Company Superior Company Proposal, Parent does not make, within such three (3) five-Business Day period, an a binding offer in the form of a proposed definitive amendment to this Agreement (not subsequently withdrawnwhich, if accepted by the Company, will become a binding agreement among Parent, Merger Sub, Successor Sub and the Company) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposalthat, as determined by the Company Board in good faith after consulting with the Company’s financial advisor and outside legal counselfaith, as After Consultation, has caused such Company Alternative Proposal to no longer be a Company Superior Company Proposal (it being understood provided that any (a) proposed amendment or modification to the financial terms or (b) material amendment to the other material terms of a Company Superior Proposal by any such Superior Person who previously submitted the same to the Company Proposal shall will require a new written notice to Parent from the Company and an additional two (2) a three-Business Day period that satisfies notice and negotiation period thereupon will commence under this Section 5.02(e4.2(e)), or (y) a Company Intervening Event, Parent does not make, within such five-Business Day period, a binding offer in the form of a proposed definitive amendment to this Agreement (which, if accepted by the Company, will become a binding agreement among Parent, Merger Sub, Successor Sub and the Company) that, as determined by the Company Board in good faith, After Consultation, obviates the need for the Company Board to make the Company Adverse Recommendation Change. For purposes of clarification and certainty, under no circumstances will the Company be permitted to terminate this Agreement in respect of a Company Superior Proposal unless it concurrently complies in all respects with the requirements of this Section 4.2(e) and Section 7.1(h), and under no circumstances will the Company be permitted to terminate this Agreement solely in respect of, or following any Company Adverse Recommendation Change made by the Company Board solely in response to, a Company Intervening Event. The Company, Parent, Merger Sub and Successor Sub each hereby expressly confirm and agree that the immediately preceding sentence of this Section 4.2(e), to the extent that it relates to the Company Adverse Recommendation Change solely in response to or in respect of a Company Intervening Event, has been agreed to for all purposes of Section 146 of the DGCL.

Change in Recommendation Permitted in Certain Circumstances. At any time prior i. If, in response to receipt of the Company Stockholder Approval, if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company ProposalProposal received by the Company after the date of this Agreement that did not result from a material breach of Section 5.02(b), and as a result thereof the Company Board determines in good faith, after consulting consultation with the Company’s outside legal counselcounsel and financial advisor, that the a failure to do so make a Company Recommendation Change would be inconsistent with the Company Board’s its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval the Company Board may make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: but only if (x) the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves determines to take such action but in any event not less than three five (35) Business Days before taking such action, which notice shall include, in the case of a Superior Company Proposal, include the identity of the offeror and a true and complete copy of the most current version of such Superior Company Proposal (including any proposed agreement or and any financing and other offer related documents), (y) for three five (35) Business Days following delivery of such notice, notice (it being understood that any amendment or modification to any Superior Company Proposal that is the basis for such proposed Company Recommendation Change shall require a new notice of Company Recommendation Change and a new five (5)-Business Day period) the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if upon the end of such five (5)-Business Day period (as extended pursuant to clause (y)) the Company Board shall have considered in good faith any revisions to the terms of the Transactions proposed Company Recommendation Change is in response to a writing by Parent and shall have determined in good faith after consultation with the Company’s outside counsel and financial advisor, (1) that the Superior Company Proposal, Parent does not make, within such three (3) Business Day period, an offer (not subsequently withdrawn) that causes the offer previously constituting Proposal would nevertheless continue to constitute a Superior Company Proposal to no longer constitute a Superior Company Proposal, as determined by and (2) that the failure of the Company Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law. ii. If, in response to an Intervening Event, the Company Board determines in good faith, after consultation with the Company’s legal counsel and financial advisor, that a failure to make a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law, then before receipt of the Company Stockholder Approval, the Company Board may make a Company Recommendation Change, but only if: (x) the Company notifies Parent in writing of its intention to take such action promptly after the Company Board determines to take such action but in any event not less than five (5) Business Days before taking such action, which notice shall specify the reasons therefor and include a description of the applicable Intervening Event, (y) for five (5) Business Days following delivery of such notice, the Company negotiates in good faith with Parent to make adjustments to the terms of the Transactions (to the extent Parent desires to negotiate) and (z) following the end of such five (5)-Business Day period, the Company Board shall have determined in good faith after consulting consultation with the Company’s legal counsel and financial advisor and outside legal counsel, as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms or (b) material amendment to the other material terms failure of any such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day period that satisfies this Section 5.02(e))Board to make such a Company Recommendation Change would be inconsistent with its fiduciary duties under applicable Law.

Change in Recommendation Permitted in Certain Circumstances. At Notwithstanding anything in this Agreement to the contrary, the Board of Directors shall be permitted to make a Company Recommendation Change solely in the manner and to the extent hereafter expressly set forth in this Section 3.10(e) in response to (1) a Superior Proposal that has been made and has not been withdrawn and continues to be a Superior Proposal and such Superior Proposal did not result from a violation in any time prior to receipt material respect of the Company Stockholder Approvalthis Section 3.10 or (2) an Intervening Event that has occurred, in each case only if the Company has complied with all Board of its obligations in all material respects under this Section 5.02, and the Company Board receives Directors and/or a Superior Company Proposal, and as a result special committee thereof the Company Board determines in good faith, after consulting consultation with its financial advisor and outside legal counsel, that the failure to do so take such action would be inconsistent with the Company Board’s fiduciary duties of the Board of Directors under applicable Lawlaw. Notwithstanding any other provision of this Agreement to the contrary, then at no time shall the Company Board may of Directors be permitted to make a Company Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (xA) the Company notifies Parent the Purchaser in writing of its intention to take such actionmake a Company Recommendation Change, promptly after which notice to the Purchaser shall be delivered by the Company Board resolves to take such action but in any event not less than three within forty-eight (348) Business Days hours before taking such actionaction and specifying the reasons therefor, which notice shall include, (I) if the Company Recommendation Change is in the case of response to a Superior Company Proposal, the identity of the offeror Person making the Superior Proposal, the material terms and conditions of the Superior Proposal (including the consideration offered therein) and a true and complete copy of all material documentation comprising the most current version of such Superior Company Proposal (including all proposed transaction agreements, including any proposed agreement or other offer documentsexhibits and schedules), it being understood and agreed that any material amendment to the financial terms or any other material term of such Superior Proposal (yit being understood that any change to the amount or form of consideration shall be deemed to be material) shall require a new notice and a new two (2) Business Day period, or (II) if the Company Recommendation Change is in response to an Intervening Event, a reasonably detailed description of the underlying facts, conditions and circumstances giving rise to the occurrence and continuing existence of such Intervening Event, it being understood and agreed that any material development in an Intervening Event shall require a new notice and a new two (2) Business Day period, (B) for three two (32) Business Days following delivery receipt by the Purchaser of such notice, the Company negotiates and its Representatives shall negotiate in good faith with Parent the Purchaser and its Representatives with respect to any revised bona fide proposal from Parent in respect of the Purchaser to amend or modify the terms of this Agreement (if the Transactions (to Purchaser, following its receipt of such notice from the extent Parent Company, has within 24 hours after such receipt, notified the Company in writing that it desires to negotiatenegotiate such amendment or modification) and (zC) if the proposed Company Recommendation Change is in response to (I) a Superior Company Proposal, Parent the Purchaser does not make, within such three two (32) Business Day periodperiod of good faith negotiation with the Purchaser, an a binding offer in the form of a proposed written definitive amendment to this Agreement (not subsequently withdrawnwhich, if accepted by the Company, shall become a binding definitive agreement between the Purchaser and the Company) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposalthat, as determined by the Company Board of Directors and/or a special committee thereof in good faith faith, after consulting consultation with the Company’s its financial advisor and outside legal counsel, is at least as favorable to the Company and its stockholders as such Superior Company Proposal (it being understood that any (a) amendment to the financial terms Proposal, or (bII) material amendment to an Intervening Event, the other material terms of any Purchaser does not make, within such Superior Company Proposal shall require a new written notice from the Company and an additional two (2) Business Day period that satisfies of good faith negotiation, a binding offer in the form of a proposed written definitive amendment to this Section 5.02(e))Agreement (which, if accepted by the Company, shall become a binding definitive agreement between the Purchaser and the Company) that, as determined by the Board of Directors and/or a special committee thereof in good faith, after consultation with its financial advisor and outside legal counsel, eliminates the need for the Board of Directors to make a Company Recommendation Change.

Change in Recommendation Permitted in Certain Circumstances. At any time prior Prior to receipt of the Company obtaining Parent Stockholder Approval, the Parent Board may make a Parent Adverse Recommendation Change solely in the manner and to the extent hereafter expressly set forth in this Section 4.3(e) in response to (x) a Parent Superior Proposal that did not result from a violation of this Section 4.3 or (y) a Parent Intervening Event, in each case only if the Company has complied with all of its obligations in all material respects under this Section 5.02, and the Company Board receives a Superior Company Proposal, and as a result thereof the Company Parent Board determines in good faith, after consulting with outside legal counselAfter Consultation, that the a failure to do so would be inconsistent with the Company Board’s fiduciary duties of the Parent Board under applicable Law. Notwithstanding any other provision of this Agreement, then the Company Board at no time may Parent make a Company Parent Adverse Recommendation Change. Notwithstanding the foregoing, the Company Board shall not make a Company Recommendation Change or approve or recommend any Superior Company Proposal pursuant to this Section 5.02(e) unless: (xi) Parent notifies the Company notifies Parent in writing of its intention to take such actionduly convene a meeting of the Parent Board to consider making a Parent Adverse Recommendation Change, promptly after which notice to the Company Board resolves must be delivered by Parent within 24 hours after Parent determines to take convene such action meeting, but in any event case, not less than three (3) five Business Days before taking such actionmeeting is convened, and which notice shall will include, (x) if the meeting of the Parent Board at which a Parent Adverse Recommendation Change is to be considered is in the case of response to a Parent Superior Company Proposal, the identity of the offeror Person making the Parent Superior Proposal and a true and complete copy of all documentation comprising the most current version of such Parent Superior Company Proposal (including any all proposed agreement transaction agreements, including exhibits and schedules) or other offer documents), (y) for three (3) Business Days following delivery of such notice, if the Company negotiates in good faith with Parent with respect to any revised proposal from Parent in respect meeting of the terms of the Transactions (to the extent Parent desires to negotiate) and (z) if the Board at which a proposed Company Parent Adverse Recommendation Change is to be considered is in response to a Parent Intervening Event, a detailed description of all underlying facts, conditions and circumstances giving rise to the occurrence and continued existence of the Parent Intervening Event, (ii) for five Business Days following receipt by the Company of such notice, Parent and its Representatives negotiate in good faith with the Company and its Representatives with respect to any proposal from the Company to amend or modify the terms of this Agreement (to the extent the Company has notified Parent that it so desires to negotiate such amendment or modification), and (iii) if the meeting of the Parent Board at which a proposed Parent Adverse Recommendation Change is to be considered is in response to (x) a Parent Superior Company Proposal, Parent the Company does not make, within such three (3) five-Business Day period, an a binding offer in the form of a proposed definitive amendment to this Agreement (not subsequently withdrawnwhich, if accepted by Parent, will become a binding agreement among the Company and Parent, Merger Sub and Successor Sub) that causes the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposalthat, as determined by the Company Parent Board in good faith after consulting with the Company’s financial advisor and outside legal counselfaith, as After Consultation, has caused such Parent Alternative Proposal to no longer be a Parent Superior Company Proposal (it being understood provided that any (a) proposed amendment or modification to the financial terms or (b) material amendment to the other material terms of a Parent Superior Proposal by any such Superior Company Proposal shall Person who previously submitted the same to Parent will require a new written notice to the Company from Parent and a three-Business Day period notice and negotiation period thereupon will commence under this Section 4.3(e)), or (y) a Parent Intervening Event, the Company does not make, within such five-Business Day period, a binding offer in the form of a proposed definitive amendment to this Agreement (which, if accepted by Parent, will become a binding agreement among the Company and an additional two (2Parent, Merger Sub and Successor Sub) Business Day period that satisfies that, as determined by the Parent Board in good faith, After Consultation, obviates the need for the Parent Board to make Parent Adverse Recommendation Change. For purposes of clarification and certainty, under no circumstances will Parent be permitted to terminate this Agreement in respect of a Parent Superior Proposal unless it concurrently complies in all respects with the requirements of this Section 5.02(e4.3(e) and Section 7.1(g), and under no circumstances will Parent be permitted to terminate this Agreement solely in respect of, or following any Parent Adverse Recommendation Change made by the Parent Board solely in response to, a Parent Intervening Event. The Company, Parent, Merger Sub and Successor Sub each hereby expressly confirm and agree that the immediately preceding sentence of this Section 4.3(e), to the extent that it relates to Parent Adverse Recommendation Change solely in response to or in respect of a Parent Intervening Event, has been agreed to for all purposes of Section 146 of the DGCL.