Common use of Company Recommendation Clause in Contracts

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, amend or modify in any manner adverse to Parent and Merger Sub the Company Recommendation, (B) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)None of the Company, neither the Board of Directors of the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Proxy Statement/Prospectus, withdraw, amend adversely qualify or modify (or resolve, determine or propose publicly to withhold, fail to include in any manner adverse to Parent and Merger Sub (or remove from) the Proxy Statement/Prospectus, withdraw, adversely qualify or modify) the Company Board Recommendation, (Bii) adopt, approve, endorserecommend, adopt submit to stockholders or recommend an declare advisable (or resolve, determine or propose publicly to adopt, approve, recommend, submit to stockholders or declare advisable) any Acquisition Proposal, including any Superior Proposal, or (Ciii) fail to recommend against acceptance of any Third Party tender offer adopt, approve or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer)recommend, (D) resolve or publicly propose to take adopt, approve or recommend, or allow the Company or any other Acquired Corporation to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement or understanding contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, including any Superior Proposal (other than an Acceptable Confidentiality Agreement to the extent permitted by Section 5.3(a)) (any action described in the foregoing clauses (Ai), (ii) through and (C) (the foregoing actions described in this clause (iiii) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve), endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to except as expressly permitted by Section 6.02) with respect to an Acquisition Proposal5.4(b). (b) (i) Notwithstanding anything in the provisions of Section 6.02(a) 5.3 and Section 6.03(a5.4(a), at any time prior to obtaining the time the Stockholder ApprovalApproval is obtained, if the Board of Directors of the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02may approve or recommend, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) or cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes for, a Superior Proposal (which agreement shall be entered into concurrently with such termination)and, subject to compliance with in each case, make an Adverse Change Recommendation in connection therewith) if and only if: (i) the terms Superior Proposal did not result from a breach of paragraph Section 5.3(a) and the Company did not otherwise breach any of its obligations under Section 5.3 or Section 5.4(a) in any material respect; (ii) the Board of Directors of the Company shall have determined in good faith, after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that the failure to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law; (iii) Parent shall have received from the Company prior written notice of the Company’s express intention to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal at least three (3) business days prior to the date of such approval, recommendation or entry; and (iv) (A) prior to giving effect to clauses (B) through (E) below, the Board of Directors of the Company shall have reasonably determined in good faith, after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that the subject Acquisition Proposal constitutes a Superior Proposal; (B) the Company shall have provided to Parent in writing the material terms and conditions of the subject Acquisition Proposal and copies of all material documents relating to the subject Acquisition Proposal in accordance with Section 5.3(c); (C) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate in good faith with Parent) during the three (3) business day period provided in the foregoing clause (iii) of this Section 5.4(b) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, so that the subject Acquisition Proposal would no longer constitute a Superior Proposal; (D) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company Financial Advisor, the Board of Directors of the Company shall have reasonably determined in good faith that the subject Acquisition Proposal remains a Superior Proposal and that the failure to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law; and (E) not later than earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, the Superior Proposal, the Company shall have complied with Section 8.1(f) and Section 8.3. Notwithstanding the foregoing, the provisions of this Section 5.4(b) shall also apply to any material amendment to any Acquisition Proposal (except that any reference to three (3) business days shall instead be two (2) business days). (c) Notwithstanding anything to the contrary herein, at any time prior to the time the Stockholder Approval is obtained, the Board of Directors of the Company may make an Adverse Change Recommendation with respect to an Intervening Event, if and only if: (i) the Board of Directors of the Company shall have determined in good faith, after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that the failure to make the Adverse Change Recommendation would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law; (ii) Parent shall have received from the Company prior written notice of the Company’s express intention to make the Adverse Change Recommendation at least three (3) business days prior to making any Adverse Change Recommendation, describing the Intervening Event in reasonable detail; (iii) during the three (3) business day period provided in the foregoing clause (ii), the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, that would obviate the need to make an Adverse Change Recommendation; and (iv) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company Financial Advisor, the Board of Directors of the Company shall have reasonably determined in good faith that the failure to make the Adverse Change Recommendation would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law. The provisions of this Section 5.4(c) shall also apply to any material change to the facts and circumstances relating to an Intervening Event (except that any reference to three (3) business days shall instead be two (2) business days).

Company Recommendation. (a) Subject to Except as permitted by Section 6.03(b) and Section 6.03(c5.02(e), neither the Company shall cause the Joint Proxy Statement/Prospectus to include the recommendation of the Company Board nor any committee thereof to the Company’s stockholders that they give the Company Stockholder Approval (the “Company Recommendation”). Except as permitted by Section 5.02(e), the Company Board shall not (i) (A) fail to make, withhold, withdraw, amend withdraw or modify in any a manner adverse to Parent and or Merger Sub Sub, or propose publicly to fail to make, withdraw or modify in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Company RecommendationBoard of this Agreement or the Merger (it being understood that taking a neutral position or no position with respect to any Company Takeover Proposal shall be considered an amendment or adverse modification), (Bii) approve, adopt, endorse, adopt recommend or otherwise declare advisable (or publicly propose to approve, adopt, endorse, recommend an Acquisition or otherwise declare advisable) a Company Takeover Proposal, (Ciii) (1) fail to publicly recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock Takeover Proposal within ten (10) Business Days after a such Company Takeover Proposal is made public (or such fewer number of days as remains prior to the Company Stockholders Meeting so long as such Company Takeover Proposal is made at least five (5) Business Days prior to the Company Stockholders Meeting), or (2) fail to reaffirm the Company Recommendation within ten (10) Business Days after any written request by Parent to do so after a Company Takeover Proposal shall have been publicly announced or shall have become publicly known (provided that Parent may only make one or such fewer number of days as remains prior to the Company Stockholders Meeting so long as such request after commencement of such offeris made at least three (3) Business Days prior to the Company Stockholders Meeting), it being understood and agreed that, other than requests for reaffirmation made by Parent within two (D2) resolve Business Days of the date that a Company Takeover Proposal first becomes public, Parent shall be entitled to request a reaffirmation of the Company Recommendation on a maximum of two (2) occasions or publicly propose (iv) authorize any of, or resolve, commit or agree to take any action described in of, the foregoing actions (any of the foregoing in clauses (Ai) through (C) (the foregoing actions described in this clause (i) being referred to as an iv), a “Adverse Company Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. Except as contemplated by Section 5.03(e) (aChange in Recommendation Permitted in Certain Circumstances), the Company shall cause the Proxy Statement/Prospectus to include the recommendation of the Company Board to the Company’s stockholders that they give the Company Stockholder Approval (the “Company Recommendation”). Except as contemplated by Section 5.03(e) Subject to Section 6.03(b) and Section 6.03(c(Change in Recommendation Permitted in Certain Circumstances), neither the Company Board nor any committee thereof shall (i) (A) fail to makechange, qualify, withhold, modify or withdraw, amend or authorize or resolve to change, qualify, withhold, modify or withdraw, in any manner adverse to Parent and Merger Sub Parent, the approval or recommendation by the Company RecommendationBoard of this Agreement or the Merger, (B) approve, endorseadopt, adopt endorse or recommend an Acquisition recommend, resolve to or announce its intention to, approve, adopt, endorse or recommend, a Company Takeover Proposal (excluding any confidential, non-public recommendation to review, consider, clarify, discuss, evaluate or negotiate any Company Takeover Proposal) or fail to include the Company Recommendation in the Proxy Statement/Prospectus when mailed, (C) within five (5) Business Days of Parent’s written request, fail to recommend against acceptance of make or reaffirm the Company Recommendation following the date any Third Party tender offer Company Takeover Proposal or exchange offer for material modification thereto is first published or sent or given to the shares stockholders of the Company Common Stock within ten Business Days after a written request by Parent to do so (other than Parent, Merger Sub or any of their respective Affiliates or Representatives); provided that Parent may only make one such request after commencement of such offer)twice with respect to any Company Takeover Proposal and once with respect to any material modification thereto that is made public, (D) resolve fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9 against any Company Takeover Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer (it being understood and agreed that a “stop, look and listen” statement pursuant to Rule 14d-9(f) of the Exchange Act shall be deemed not to be a Company Recommendation Change), or (E) publicly propose or agree to take do any action described in of the foregoing clauses (A) through (C) (any one or more of the foregoing actions described in this clause (i) being referred to as an ), a “Adverse Company Recommendation Change”) ), or (ii) enter into, approve, adopt, endorse or recommend, or propose publicly propose to enter into, approve, adopt, endorse or recommend, or cause or permit the Company or any Subsidiary letter of the Company to execute or enter intointent, any agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other Contract providing for a transaction referred to in the definition of a “Company Takeover Proposal” (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition ProposalAgreement). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. Except as contemplated by Section 5.02(e) (aChange in Recommendation Permitted in Certain Circumstances), the Company shall cause the Proxy Statement to include the recommendation of the Company Board to the Company’s stockholders that they give the Company Stockholder Approval (the “Company Recommendation”). Except as contemplated by Section 5.02(e) Subject to Section 6.03(b) and Section 6.03(c(Change in Recommendation Permitted in Certain Circumstances), neither the Company Board nor any committee thereof shall (A) (i) (A) fail to makechange, qualify, withhold, modify or withdraw, amend or authorize or resolve to change, qualify, withhold, modify or withdraw, in any manner adverse to Parent and Merger Sub Parent, the approval or recommendation by the Company RecommendationBoard of this Agreement or the Merger, (Bii) approve, endorseadopt, adopt endorse or recommend an Acquisition recommend, resolve to or announce its intention to, approve, adopt, endorse or recommend, a Company Takeover Proposal (excluding any confidential, non-public recommendation to review, consider, clarify, discuss, evaluate or negotiate any Company Takeover Proposal) or fail to include the Company Recommendation in the Proxy Statement when mailed, (Ciii) within five (5) Business Days of Parent’s written request, fail to recommend against acceptance of make or reaffirm the Company Recommendation following the date any Third Party tender offer Company Takeover Proposal or exchange offer for material modification thereto is first published or sent or given to the shares stockholders of the Company Common Stock within ten Business Days after a written request by Parent to do so (other than Parent, Merger Sub or any of their respective Affiliates or Representatives), provided that Parent may only make one such request twice with respect to any Company Takeover Proposal and once with respect to any material modification thereto that is made public, (iv) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9 against any Company Takeover Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such offertender offer or exchange offer (it being understood and agreed that a “stop, look and listen” statement pursuant to Rule 14d-9(f) of the Exchange Act shall be deemed not to be a Company Recommendation Change), or (Dv) resolve or publicly propose or agree to take do any action described in of the foregoing clauses (A) through (C) (any one or more of the foregoing actions described in this clause (i) being referred to as an A), a “Adverse Company Recommendation Change”) ), or (iiB) enter into, approve, adopt, endorse or recommend, or propose publicly propose to enter into, approve, adopt, endorse or recommend, or cause or permit the Company or any Subsidiary letter of the Company to execute or enter intointent, any agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other Contract providing for a transaction referred to in the definition of a “Company Takeover Proposal” (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition ProposalAgreement). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(b) Between the date of this Agreement and Section 6.03(c)the Closing Date, neither the Company Company’s Board of Directors nor any committee thereof shall may directly or indirectly withdraw (i) (A) fail to make, withhold, withdraw, or amend or modify in any a manner adverse to Parent and Merger Sub Freeport or Purchaser), or propose publicly to withdraw (or amend or modify in a manner adverse to Freeport or Purchaser), the Company Recommendation, Recommendation (B) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the a “Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) ). Notwithstanding anything to the contrary in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder Approval, and subject to the Company’s compliance at all times with the provisions of Sections 5.02, 5.03(a) and 5.04 , the Company’s Board of Directors or a committee thereof may make a Company Adverse Recommendation Change in response to an Intervening Event if the Company receives an Acquisition Proposal that did not result from Company’s Board of Directors, or a material breach of Section 6.02committee thereof, and the Company Board determines concludes in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, ) that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable applicable Law. However, the Company’s Board of Directors or a committee thereof will not be entitled to exercise its right to make a Company Adverse Recommendation Change unless (i) the Company provides written notice to Freeport and Purchaser (which shall include a description of the Intervening Event) at least four Business Days before taking such action (or, if four Business Days notice would not allow the Company’s Board of Directors or a committee thereof to make a Company Adverse Recommendation Change not less than ten Business Days before the Company Stockholder Meeting, as soon as practicable and in any event within 24 hours after such Intervening Event arises) of its intention to do so and specifying the reasons therefor in reasonable detail and the Company otherwise complies with this Section 5.03(a) and (ii) during such four Business Day period, if requested by Purchaser and Freeport, the Company Board may (A) make an engages in good faith negotiations with Purchaser and Freeport to amend this Agreement in such a manner that obviates the need for a Company Adverse Recommendation Change and/or as a result of the Intervening Event. (Bb) cause Nothing in this Section 5.03 shall prohibit the Board of Directors of the Company or a committee thereof from taking and disclosing to terminate this Agreement pursuant to Section 8.01(hthe Company’s stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) and authorize of Regulation M-A promulgated under the Exchange Act, or other Law, if the Board of Directors of the Company or a committee thereof, after consultation with outside legal counsel, determines in good faith that the failure to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall so disclose such position would reasonably be entered into concurrently with such termination), subject expected to compliance be inconsistent with the terms directors’ exercise of paragraph (ii) belowtheir fiduciary obligations under Law.

Company Recommendation. (a) Subject to Section 6.03(bSECTION 5.3(b) and Section 6.03(cSECTION 5.3(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, qualify, amend or modify, or publicly propose to withhold, withdraw, qualify, amend or modify modify, in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, the Company’s recommending adoption of this Agreement to the stockholders of the Company (the “Company Recommendation”), or fail to include the Company Recommendation in the Proxy Statement/Prospectus, (Bii) approve, endorseadopt or recommend, or publicly propose to approve, adopt or recommend recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party third party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute execute, or enter into, any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or Contract other similar agreement with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02SECTION 5.2) with respect or (v) resolve or publicly propose to take any action described in the foregoing clauses (i) through (iv) (each of the foregoing actions described in clauses (i) through (v) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(athis Agreement to the contrary, including SECTION 5.3(a), at any time prior to obtaining the Company Stockholder Approval, if the Company receives an Acquisition in response to a Superior Proposal that is first made after the date hereof and did not result from a material breach of Section 6.02SECTION 5.2 or this SECTION 5.3, and the Company Board may, if it determines in good faith (after consultation with a Company Financial Advisor its financial advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(hSECTION 7.1(c)(ii) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, amend or modify in any manner adverse to Parent and Merger Sub the Company Recommendation, (B) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a6.02(b) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(bSections 5.4(b) and Section 6.03(c(c), neither the Board of Directors of the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify the Company Board Recommendation, in each case in any manner adverse to Parent and Merger Sub the Company Recommendationtransactions contemplated by this Agreement, or (Bii) approveapprove or recommend, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses approve or recommend, an Acquisition Proposal (A) through (C) (each of the foregoing actions described in this clause clauses (i) and (ii) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal). (b) (i) Notwithstanding anything in this Agreement to the contrary, including Section 6.02(a) and Section 6.03(a5.4(a), at any time prior to obtaining the Stockholder ApprovalControl Time, the Board of Directors of the Company may, if the Company receives an Acquisition Proposal that did not result from a material breach Board of Section 6.02, and Directors of the Company Board determines in good faith (after consultation with a the Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take do so would constitute a breach of the actions below would be reasonably likely to be inconsistent with its fiduciary duties of the Board of Directors of the Company under Applicable Law, the Company Board may (A) make an Adverse Change Recommendation Change and/or in response to either (1) a Superior Proposal received after the date hereof or (2) any material fact, event, change, development or circumstance not known by the Board of Directors of the Company as of the date hereof and not relating to the receipt, existence or terms of any Acquisition Proposal or consequence thereof (such fact, event, change, development or circumstance, an “Intervening Event”) or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h8.1(f) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes with respect to a Superior Proposal (which agreement shall be entered into substantially concurrently with such terminationtermination (or no later than the next business day if such termination occurs on a day that is not a business day)), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, fail to make, amend or modify in any manner adverse to the transactions contemplated by this Agreement, Parent or Merger Sub, publicly propose to withhold, withdraw, amend or modify in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, or otherwise make any public statement or proposal inconsistent with, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to approve, endorse, adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock publicly announced Acquisition Proposal within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement following the public announcement of such offer)Acquisition Proposal, (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (iiiv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition ProposalProposal or Acquisition Transaction or that could be reasonably expected to materially delay or materially impair the transactions contemplated by this Agreement or (v) resolve or publicly propose to take any action described in the foregoing clauses (i) through (iv) (each of the foregoing actions described in clauses (i) through (v) being referred to as an “Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) 6.02 and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an has received a bona fide written Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor financial advisor and outside legal counsel, it being understood that with respect to the matter described in clause (ii) below, only consultation with outside legal counsel shall be required), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change described in clause (i) of the definition thereof and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Except as permitted by Section 6.03(b) and Section 6.03(c5.02(e), neither the Company shall cause the Proxy Statement to include the recommendation of the Company Board nor any committee thereof to the Company’s stockholders that they give the Company Stockholder Approval (the “Company Recommendation”). Except as permitted by Section 5.02(e), the Company Board shall not (i) (A) fail to make, withhold, withdraw, amend withdraw or modify in any a manner adverse to Parent and or Merger Sub Sub, or propose publicly to fail to make, withdraw or modify in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Company RecommendationBoard of this Agreement or the Merger (it being understood that taking a neutral position or no position with respect to any Company Takeover Proposal shall be considered an amendment or adverse modification), (Bii) approve, adopt, endorse, adopt recommend or otherwise declare advisable (or publicly propose to approve, adopt, endorse, recommend an Acquisition or otherwise declare advisable) a Company Takeover Proposal, (Ciii) fail to (1) publicly recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock Takeover Proposal within ten 10 Business Days after a such Company Takeover Proposal is made public (or such fewer number of days as remains prior to the Company Stockholders Meeting so long as such Company Takeover Proposal is made at least five Business Days prior to the Company Stockholders Meeting), or (2) fail to reaffirm the Company Recommendation within 10 Business Days after any written request by Parent to do so after a Company Takeover Proposal shall have been publicly announced or shall have become publicly known (provided that Parent may only make one or such fewer number of days as remains prior to the Company Stockholders Meeting so long as such request after commencement of such offeris made at least three Business Days prior to the Company Stockholders Meeting), it being understood and agreed that, other than requests for reaffirmation made by Parent within two Business Days of the date that a Company Takeover Proposal first becomes public, Parent shall be entitled to request a reaffirmation of the Company Recommendation on a maximum of two occasions or (Div) resolve authorize any of, or publicly propose resolve, commit or agree to take any action described in of, the foregoing actions (any of the foregoing in clauses (Ai) through (C) (the foregoing actions described in this clause (i) being referred to as an iv), a “Adverse Company Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)Until the Specified Time, neither the Company Board nor any committee thereof shall (i1) (A) fail to make, withhold, withdraw, amend qualify or modify in any a manner adverse to Parent and Merger Sub Parent, or resolve to or publicly propose to withhold, withdraw, qualify, or modify in a manner adverse to Parent, the Company Board Recommendation, (B) approve, endorse, adopt remove the Company Board Recommendation from or recommend an Acquisition Proposal, fail to include the Company Board Recommendation in the Schedule 14D-9 or (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse recommend or recommenddeclare advisable, or publicly propose to approve, endorse recommend or declare advisable, any Acquisition Proposal (any action described in this clause (1) being referred to as a “Company Adverse Change in Recommendation”) or (2) adopt, approve, recommend, submit to stockholders or cause declare advisable, or permit the Company propose to adopt, approve, recommend, submit to stockholders or declare advisable, or allow any Subsidiary of the Tetraphase Company to execute or enter intointo any letter of intent (whether or not binding), term sheet, merger agreement, acquisition agreement, option agreement, agreement in principle or similar agreement providing for any agreement Acquisition Proposal, or Contract requiring the Company to abandon, terminate, delay or fail to consummate the Contemplated Transactions (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02Agreement) with respect to (any such Contract, an “Alternative Acquisition ProposalAgreement”). (b) (i) Notwithstanding anything to the contrary contained in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder Approval, Specified Time: (i) if the Company receives an has received a bona fide written Acquisition Proposal that (which Acquisition Proposal did not result from arise out of a material breach of Section 6.024.4(b), (c), (d) or (e)) from any Person that has not been withdrawn and after consultation with outside legal counsel and independent financial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer, (x) the Company Board may make a Company Adverse Change in Recommendation, and/or (y) the Company may terminate this Agreement to substantially concurrently therewith enter into a Specified Agreement with respect to such Superior Offer and pay the Termination Fee pursuant to Section 8.3, in each case if and only if: (A) the Company Board determines in good faith (faith, after consultation with a Company Financial Advisor and the Company’s outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent counsel and Merger Sub in response to such Acquisition Proposalindependent financial advisors, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would such action could reasonably be reasonably likely expected to be inconsistent with its the fiduciary duties under Applicable Law, of the Company Board may (A) make an Adverse Recommendation Change and/or to the Company’s stockholders under applicable Legal Requirements; (B) cause the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change in Recommendation or terminate this Agreement pursuant to Section 8.01(h8.1(f) at least four Business Days prior to making any such Company Adverse Change in Recommendation or termination (a “Determination Notice”) (which notice shall not in and authorize of itself constitute a Company Adverse Change in Recommendation or a termination of this Agreement); and (C) (1) the Company shall have made available to Parent the identity of the offeror, a summary of the material terms and conditions of the Acquisition Proposal and copies of all written materials and other documents required by Section 4.4(e), (2) the Company shall have given Parent the four Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any (provided, that Parent may revise such offer or proposal in response to any revisions to a Superior Offer), (3) after considering any such revised proposal from Parent, including whether such proposal was a written, binding and irrevocable offer, and the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change in Recommendation and/or terminate this Agreement pursuant to Section 8.1(f) could reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements and (4) if the Company intends to terminate this Agreement to enter into a definitive agreement providing for Specified Agreement, the Company shall have complied with Section 8.1(f). The provisions of this Section 5.1(b)(i) shall also apply to any material amendment (which shall include any revision to the amount, form or mix of consideration the Company’s stockholder would receive) to any Acquisition Proposal and require a transaction that constitutes new Determination Notice, except that, in the case of material amendments to any Acquisition Proposal, the references to four Business Days shall be deemed to be two Business Days; or (ii) other than in connection with a Superior Proposal Offer (which agreement shall be entered into concurrently with such terminationsubject to Section 5.1(b)(i)), subject the Company Board may make a Company Adverse Change in Recommendation in response to compliance a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action could reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four Business Days prior to making any such Company Adverse Change in Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail including a summary of the material facts and circumstances involved in such Change in Circumstance, (2) the Company shall have given Parent the four Business Days after the Determination Notice to propose revisions to the terms of paragraph this Agreement or make other proposals and shall have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any, such that the applicable Change in Circumstance would no longer necessitate a Company Adverse Change in Recommendation under this Section 5.1(b), and (ii3) belowafter considering any such proposal, including whether such proposal was a written, binding and irrevocable offer, and the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors, the Company Board shall have determined in good faith that the failure to make the Company Adverse Change in Recommendation could reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 5.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Circumstance and require a new Determination Notice, except that, in the case of material changes to any facts and circumstances relating to such Change in Circumstance, the references to four Business Days shall be deemed to be two Business Days. (c) The Company shall ensure that any withdrawal or modification of the Company Board Recommendation does not have the effect of causing any corporate takeover law of the State of Delaware or any other state to be applicable to this Agreement or any of the Support Agreements, the Offer, the Merger or any of the other Contemplated Transactions.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)None of the Company, neither the Board of Directors of the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Proxy Statement/Prospectus, withdraw, amend adversely qualify or modify (or resolve, determine or propose publicly to withhold, fail to include in any manner adverse to Parent and Merger Sub (or remove from) the Proxy Statement/Prospectus, withdraw, adversely qualify or modify) the Company Board Recommendation, (Bii) adopt, approve, endorserecommend, adopt submit to stockholders or recommend an declare advisable (or resolve, determine or propose publicly to adopt, approve, recommend, submit to stockholders or declare advisable) any Acquisition Proposal, including any Superior Proposal, or (Ciii) fail to recommend against acceptance of any Third Party tender offer adopt, approve or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer)recommend, (D) resolve or publicly propose to take adopt, approve or recommend, or allow the Company or any other Acquired Corporation to execute or enter into, any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement or understanding contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, including any Superior Proposal (other than an Acceptable Confidentiality Agreement to the extent permitted by Section 5.3(a)) (any action described in the foregoing clauses (Ai), (ii) through and (C) (the foregoing actions described in this clause (iiii) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve), endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to except as expressly permitted by this Section 6.02) with respect to an Acquisition Proposal5.4(b). (b) (i) Notwithstanding anything in the provisions of Section 6.02(a) 5.3 and Section 6.03(a5.4(a), at any time prior to obtaining the time the Stockholder ApprovalApproval is obtained, if the Board of Directors of the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02may approve or recommend, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) or cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes for, a Superior Proposal (which agreement shall be entered into concurrently with such termination)and, subject to compliance with in each case, make an Adverse Change Recommendation in connection therewith) if and only if: (i) the terms Superior Proposal did not result from a breach of paragraph Section 5.3(a) and the Company did not otherwise breach any of its obligations under Section 5.3 or Section 5.4(a) in any material respect; (ii) the Board of Directors of the Company shall have determined in good faith, after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that the failure to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law; (iii) Parent shall have received from the Company prior written notice of the Company’s express intention to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal at least four (4) business days prior to the date of such approval, recommendation or entry; and (iv) (A) prior to giving effect to clauses (B) through (E) below, the Board of Directors of the Company shall have reasonably determined in good faith, after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that the subject Acquisition Proposal constitutes a Superior Proposal; (B) the Company shall have provided to Parent in writing the material terms and conditions of the subject Acquisition Proposal and copies of all material documents relating to the subject Acquisition Proposal in accordance with Section 5.3(c); (C) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate in good faith with Parent) during the four (4) business day period provided in the foregoing clause (iii) of this Section 5.4(b) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, so that the subject Acquisition Proposal would no longer constitute a Superior Proposal; (D) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company Financial Advisor, the Board of Directors of the Company shall have reasonably determined in good faith that the subject Acquisition Proposal remains a Superior Proposal and that the failure to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal would reasonably likely violate the fiduciary duties of the Board of Directors of the Company under applicable Law; and (E) not later than earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, the Superior Proposal, the Company shall have complied with Section 8.1(f) and Section 8.3. Notwithstanding the foregoing, the provisions of this Section 5.4(b) shall also apply to any material amendment to any Acquisition Proposal (except that any reference to four (4) business days shall instead be three (3) business days).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)Until the Specified Time, neither the Company Board nor any committee thereof shall (i1) (A) fail to make, withhold, withdraw, amend qualify or modify in any a manner adverse to Parent and Merger Sub Parent, or resolve to or publicly propose to withhold, withdraw, qualify, or modify in a manner adverse to Parent, the Company Board Recommendation, (B) approve, endorse, adopt remove the Company Board Recommendation from or recommend an Acquisition Proposal, fail to include the Company Board Recommendation in the Schedule 14D-9 or (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse recommend or recommenddeclare advisable, or publicly propose to approve, endorse recommend or declare advisable, any Acquisition Proposal (any action described in this clause (1) being referred to as a “Company Adverse Change in Recommendation”) or (2) adopt, approve, recommend, submit to stockholders or cause declare advisable, or permit the Company propose to adopt, approve, recommend, submit to stockholders or declare advisable, or allow any Subsidiary of the Target Company to execute or enter intointo any letter of intent (whether or not binding), term sheet, merger agreement, acquisition agreement, option agreement, agreement in principle or similar agreement providing for any agreement Acquisition Proposal, or Contract requiring the Company to abandon, terminate, delay or fail to consummate the Contemplated Transactions (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02Agreement) with respect to (any such Contract, an “Alternative Acquisition ProposalAgreement”). (b) (i) Notwithstanding anything to the contrary contained in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder Approval, Specified Time: (i) if the Company receives an has received a bona fide written Acquisition Proposal that (which Acquisition Proposal did not result from arise out of a material breach of Section 6.024.4(b), (c), (d) or (e)) from any Person that has not been withdrawn and after consultation with outside legal counsel and independent financial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer, (x) the Company Board may make a Company Adverse Change in Recommendation with respect to such Superior Offer, and/or (y) the Company may terminate this Agreement to substantially concurrently therewith enter into a Specified Agreement with respect to such Superior Offer and pay the Termination Fee pursuant to Section 7.3, in each case if and only if: (A) the Company Board determines in good faith (faith, after consultation with a Company Financial Advisor and the Company’s outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below such action would be reasonably likely to be inconsistent with its the fiduciary duties under Applicable Law, of the Company Board may (A) make an Adverse Recommendation Change and/or to the Company’s stockholders under applicable Legal Requirements; (B) cause the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change in Recommendation or terminate this Agreement pursuant to Section 8.01(h7.1(e) at least three Business Days prior to making any such Company Adverse Change in Recommendation or termination (a “Determination Notice”) (which notice shall not in and authorize of itself constitute a Company Adverse Change in Recommendation or a termination of this Agreement); and (C) (1) the Company shall have made available to Parent the identity of the offeror, a summary of the material terms and conditions of the Acquisition Proposal and copies of all written materials and other documents required by Section 4.4(e), (2) the Company shall have given Parent the three Business Days after the Determination Notice to propose revisions to the terms of this Agreement, the Financing Commitment and/or the Limited Guarantee or make other proposals and shall, if requested by Parent, have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any (provided, that Parent may revise such offer or proposal in response to any revisions to a Superior Offer), (3) after considering any such revised proposal from Parent, including whether such proposal was a written, binding and irrevocable offer, and the results of any such negotiations and giving effect to the proposals made by Parent, if any, the Company Board shall have determined in good faith (I) after consultation with outside legal counsel and its independent financial advisors, that such Acquisition Proposal is a Superior Offer and (II) after consultation with outside legal counsel, that the failure to make the Company Adverse Change in Recommendation and/or terminate this Agreement pursuant to Section 7.1(e) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements and (4) if the Company intends to terminate this Agreement to enter into a definitive agreement providing for Specified Agreement, the Company shall have complied with Section 7.1(e). The provisions of this Section 5.1(b)(i) shall also apply to any material amendment (which shall include any revision to the amount, form or mix of consideration the Company’s stockholder would receive) to any Acquisition Proposal and require a transaction new Determination Notice, except that, in the case of material amendments to any Acquisition Proposal, the references to three Business Days shall be deemed to be two Business Days (except that constitutes in no event will the delivery of such a new Determination Notice shorten any existing three Business Day period); or (ii) other than in connection with a Superior Proposal Offer (which agreement shall be entered into concurrently with such terminationsubject to Section 5.1(b)(i)), subject the Company Board may make a Company Adverse Change in Recommendation in response to compliance a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least three Business Days prior to making any such Company Adverse Change in Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail including a summary of the material facts and circumstances involved in such Change in Circumstance, (2) the Company shall have given Parent the three Business Days after the Determination Notice to propose revisions to the terms of paragraph this Agreement, the Financing Commitment and/or the Limited Guarantee or make other proposals and shall have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any, such that the applicable Change in Circumstance would no longer necessitate a Company Adverse Change in Recommendation under this Section 5.1(b), and (ii3) belowafter considering any such proposal, including whether such proposal was a written, binding and irrevocable offer, and the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel, the Company Board shall have determined in good faith that the failure to make the Company Adverse Change in Recommendation would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 5.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Circumstance and require a new Determination Notice, except that, in the case of material changes to any facts and circumstances relating to such Change in Circumstance, the references to three Business Days shall be deemed to be two Business Days (except that in no event will the delivery of such a new Determination Notice shorten any existing three Business Day period).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) (A) fail to make, withhold, withdraw, amend amend, qualify or modify in any manner adverse modify, or publicly propose to Parent and Merger Sub withhold, withdraw, amend, qualify or modify, the Company Recommendation, (Bii) authorize, adopt, approve, endorseendorse or recommend, adopt or recommend publicly propose to authorize, adopt, approve, endorse or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a written request by Parent to do so commencement (provided that Parent may only make one such request after commencement within the meaning of Rule 14d-2 under the Exchange Act) of such offeroffer (or if the Stockholder Meeting is scheduled to be held within ten (10) Business Days from the date of such commencement, promptly and in any event prior to the date which is one (1) Business Day before the date on which the Stockholder Meeting is scheduled to be held), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter intointo any letter of intent, any memorandum of understanding, merger agreement, acquisition agreement, or other similar agreement or Contract with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement Agreement, or such other permitted confidentiality agreement, pursuant to Section 6.02), (v) with respect fail to publicly reaffirm the Company Recommendation within five (5) Business Days after Parent so requests in writing (or, if the Company Stockholders Meeting is scheduled to be held within five (5) Business Days of such request, within one (1) Business Day after such request and, in any event, prior to the date of the Company Stockholders Meeting), provided that Parent may make such a request no more than three (3) times in the aggregate, and no more than one time in any ten (10)-day period, (vi) fail to include the Company Recommendation in the Proxy Statement or (vii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vi) (each of the foregoing actions described in clauses (i) through (vii) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and this Agreement to the contrary, including Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board or any committee thereof may, acting upon the recommendation of the Special Committee, if it determines in good faith (after consultation with a Company Financial Advisor or a Special Committee Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change in response to either (1) a Superior Proposal or (2) an Intervening Event and/or (B) in the case of a Superior Proposal, cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination)Proposal, subject in each case to prior compliance with the terms of paragraph (ii) or (iii) below, as applicable. (i) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made and (y) no termination of this Agreement pursuant to Section 8.01(h) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board or any committee thereof, intends to make an Adverse Recommendation Change and/or terminate this Agreement pursuant to Section 8.01(h) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any other relevant transaction documents (it being understood and agreed that any amendment, modification or change to the financial terms or any material amendments, modification or change to any other term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of three (3) Business Days, and compliance with this Section 6.03(b) with respect to such new notice); (B) unless during such five (5) Business Day period (or three (3) Business Day period following an amended, modified or changed proposal), the Company shall, and shall make its Representatives available to, to the extent requested by Xxxxxx, discuss and negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters as would enable the Company Board or the Special Committee, to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; and (C) unless, prior to the expiration of such five (5) Business Day period (or three (3) Business Day period following an amended proposal), Parent does not make a written proposal to adjust the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters that the Company Board or the Special Committee determines in good faith (after consultation with a Company Financial Advisor (or, in the case of the Special Committee, a Special Committee Financial Advisor) and outside legal counsel) to be at least as favorable to the Company’s stockholders as the Superior Proposal. (ii) In the case of an Intervening Event, no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board or the Special Committee intends to take such action and specifying the material facts underlying the determination by the Company Board or the Special Committee that an Intervening Event has occurred, and the reason for the Adverse Recommendation Change, in reasonable detail (a “Notice of Intervening Event”); (B) unless during such five (5) Business Day period, the Company shall, and shall make its Representatives available to, to the extent requested by Xxxxxx, discuss and negotiate with Parent in good faith to enable Parent to amend this Agreement, the Guarantees and the Financing Commitment Letters in such a manner that obviates the need for an Adverse Recommendation Change; and (C) unless, prior to the expiration of such five (5) Business Day period, the Company Board or the Special Committee determines in good faith, taking into consideration any amendments to this Agreement, the Guarantees and the Financing Commitment Letters proposed in writing by Parent (after consultation with a Company Financial Advisor (or, in the case of the Special Committee, a Special Committee Financial Advisor) and outside legal counsel), that the failure to effect an Adverse Recommendation Change would still be inconsistent with its fiduciary duties under Applicable Law. (iii) Xxxxxx and Xxxxxx Sub agree that any proposals to amend this Agreement, the Guarantees and/or the Financing Commitment Letters in response to a Notice of Superior Proposal or a Notice of Intervening Event shall be made on a confidential basis to the Special Committee Financial Advisor, except as required by Applicable Law. (c) Nothing contained in Section 6.02 or this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board or any committee thereof, after consultation with outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under Applicable Law or any disclosure requirements under Applicable Law, or (iii) making any disclosure that constitutes a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act, in each case, so long as any such disclosure does not include any statement that constitutes an Adverse Recommendation Change (it being understood that a customary “stop, look and listen” communication by the Company Board or any committee thereof pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not, in and of itself, constitute an Adverse Recommendation Change).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither Neither the Board of Directors of the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, qualify, amend or modify in any a manner adverse to Parent and or Merger Sub Sub, the Company RecommendationRecommendation or make any public announcement inconsistent with the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to an Acquisition Proposal shall be considered an adverse modification), (Bii) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party if a tender offer or exchange offer for the shares of the Company Common Stock that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent, fail to file, within ten (10) Business Days after a following Parent's written request by Parent to do so (provided so, a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that Parent may only make one the shareholders reject such request after commencement of such offer)Acquisition Proposal, (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (iiiii) approve, endorse recommend or recommenddeclare advisable any Acquisition Proposal made or received after the date hereof, or publicly propose to approve(iv) enter into any letter of intent, endorse or recommendmemorandum of understanding, or cause or permit the Company or any Subsidiary of the Company to execute or enter intoagreement in principle, any acquisition agreement, merger agreement or Contract other agreement constituting or relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement as permitted under Section 5.2(c)) or (v) fail to include the Company Recommendation in the Schedule 14D-9, (vi) release any Person from, or grant any waiver of, or fail to enforce any standstill or similar agreement, unless the Company's Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that it would be inconsistent with its fiduciary duties under applicable Law not to do so, or (vii) take any action pursuant to which any Person (other than Parent, Merger Sub or their respective Affiliates) or Acquisition Proposal would become exempt from or not otherwise subject to any Takeover Law (any of the actions described in clauses (i) through (vii) of this Section 6.02) with respect to an Acquisition Proposal5.3(a), a "Company Change of Recommendation"). (b) (iNotwithstanding Section 5.3(a) Notwithstanding or anything to the contrary set forth in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder ApprovalAcceptance Time, if the Company's Board of Directors (or any committee thereof) may, in the event that the Company's Board of Directors (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, that a failure to effect a Company Change of Recommendation would reasonably be expected to be inconsistent with its fiduciary duties to the Company receives an Acquisition and its shareholders under applicable Law, effect any Company Change of Recommendation pursuant to any clause of Section 5.3(a); provided, that (i) the Company has provided at least twenty-four (24) hours prior written notice to Parent that it intends to effect a Company Change of Recommendation, describing in reasonable detail the reasons for such Company Change of Recommendation (a "Recommendation Change Notice") and, in the case of a Superior Proposal, including the material terms and conditions of such Superior Proposal and attach a copy of the most current draft of any written agreement relating thereto (it being agreed that did the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not result from constitute a Company Change of Recommendation for purposes of this Agreement); (ii) if requested by Parent after receipt of such notice, the Company shall have discussed and negotiated in good faith and have made its Representatives available to discuss with Parent's Representatives and negotiate in good faith (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Pacific time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending four (4) Business Days later at 5:00 p.m. Pacific time; provided, however that in the event there is a material breach change to the facts and circumstances underlying the decision to effect a Company Change of Section 6.02Recommendation (including any amendment to any material term of a Superior Proposal), and the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply again with the requirements of this Section 5.3, except that references to the four (4) Business Day period in this clause; (ii) shall be deemed references to a two (2) Business Day period; and (iii) the Company's Board determines of Directors (or any committee thereof) shall have determined in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to considering in good faith the terms in of any proposed amendment or modification to this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition ProposalAgreement, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below effect a Company Change of Recommendation would still reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, to the Company and its shareholders under applicable Law. Any Company Change of Recommendation shall not change the approval of this Agreement or any other approval of the Board may (A) make an Adverse Recommendation Change and/or (B) cause of Directors of the Company in any respect that would have the effect of causing any Takeover Law to be applicable to any of the Transactions. Nothing in this Section 5.3 shall in any way limit or otherwise affect Parent's right to terminate this Agreement pursuant to under Section 8.01(h8.1(e). (c) and authorize Nothing in this Agreement shall prohibit or restrict the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal or the Company's Board of Directors (which agreement shall be entered into concurrently with such terminationor any committee thereof) from, without limiting the generality of Section 5.3(a), subject (i) taking and disclosing to compliance the Company's shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the terms provisions of paragraph Rule 14d-9 promulgated under the Exchange Act or (ii) belowissuing a "stop look and listen" statement pending disclosure of its position thereunder as contemplated by Rule 14d-9(f) under the Exchange Act.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) (A) fail to make, withhold, withdraw, amend amend, qualify or modify in any manner adverse modify, or publicly propose to Parent and Merger Sub withhold, withdraw, amend, qualify or modify, the Company Recommendation, (Bii) authorize, adopt, approve, endorseendorse or recommend, adopt or recommend publicly propose to authorize, adopt, approve, endorse or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a written request by Parent to do so commencement (provided that Parent may only make one such request after commencement within the meaning of Rule 14d-2 under the Exchange Act) of such offeroffer (or if the Stockholder Meeting is scheduled to be held within ten (10) Business Days from the date of such commencement, promptly and in any event prior to the date which is one (1) Business Day before the date on which the Stockholder Meeting is scheduled to be held), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter intointo any letter of intent, any memorandum of understanding, merger agreement, acquisition agreement, or other similar agreement or Contract with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement Agreement, or such other permitted confidentiality agreement, pursuant to Section 6.02), (v) with respect fail to publicly reaffirm the Company Recommendation within five (5) Business Days after Parent so requests in writing (or, if the Company Stockholders Meeting is scheduled to be held within five (5) Business Days of such request, within one (1) Business Day after such request and, in any event, prior to the date of the Company Stockholders Meeting), provided that Parent may make such a request no more than three (3) times in the aggregate, and no more than one time in any ten (10)-day period, (vi) fail to include the Company Recommendation in the Proxy Statement or (vii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vi) (each of the foregoing actions described in clauses (i) through (vii) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and this Agreement to the contrary, including Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board or any committee thereof may, acting upon the recommendation of the Special Committee, if it determines in good faith (after consultation with a Company Financial Advisor or a Special Committee Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change in response to either (1) a Superior Proposal or (2) an Intervening Event and/or (B) in the case of a Superior Proposal, cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination)Proposal, subject in each case to prior compliance with the terms of paragraph (ii) or (iii) below, as applicable. (i) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made and (y) no termination of this Agreement pursuant to Section 8.01(h) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board or any committee thereof, intends to make an Adverse Recommendation Change and/or terminate this Agreement pursuant to Section 8.01(h) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any other relevant transaction documents (it being understood and agreed that any amendment, modification or change to the financial terms or any material amendments, modification or change to any other term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of three (3) Business Days, and compliance with this Section 6.03(b) with respect to such new notice); (B) unless during such five (5) Business Day period (or three (3) Business Day period following an amended, modified or changed proposal), the Company shall, and shall make its Representatives available to, to the extent requested by Parent, discuss and negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters as would enable the Company Board or the Special Committee, to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; and (C) unless, prior to the expiration of such five (5) Business Day period (or three (3) Business Day period following an amended proposal), Parent does not make a written proposal to adjust the terms and conditions of this Agreement, the Guarantees and the Financing Commitment Letters that the Company Board or the Special Committee determines in good faith (after consultation with a Company Financial Advisor (or, in the case of the Special Committee, a Special Committee Financial Advisor) and outside legal counsel) to be at least as favorable to the Company’s stockholders as the Superior Proposal. (ii) In the case of an Intervening Event, no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board or the Special Committee intends to take such action and specifying the material facts underlying the determination by the Company Board or the Special Committee that an Intervening Event has occurred, and the reason for the Adverse Recommendation Change, in reasonable detail (a “Notice of Intervening Event”); (B) unless during such five (5) Business Day period, the Company shall, and shall make its Representatives available to, to the extent requested by Parent, discuss and negotiate with Parent in good faith to enable Parent to amend this Agreement, the Guarantees and the Financing Commitment Letters in such a manner that obviates the need for an Adverse Recommendation Change; and (C) unless, prior to the expiration of such five (5) Business Day period, the Company Board or the Special Committee determines in good faith, taking into consideration any amendments to this Agreement, the Guarantees and the Financing Commitment Letters proposed in writing by Parent (after consultation with a Company Financial Advisor (or, in the case of the Special Committee, a Special Committee Financial Advisor) and outside legal counsel), that the failure to effect an Adverse Recommendation Change would still be inconsistent with its fiduciary duties under Applicable Law. (iii) Parent and Merger Sub agree that any proposals to amend this Agreement, the Guarantees and/or the Financing Commitment Letters in response to a Notice of Superior Proposal or a Notice of Intervening Event shall be made on a confidential basis to the Special Committee Financial Advisor, except as required by Applicable Law. (c) Nothing contained in Section 6.02 or this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board or any committee thereof, after consultation with outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under Applicable Law or any disclosure requirements under Applicable Law, or (iii) making any disclosure that constitutes a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act, in each case, so long as any such disclosure does not include any statement that constitutes an Adverse Recommendation Change (it being understood that a customary “stop, look and listen” communication by the Company Board or any committee thereof pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not, in and of itself, constitute an Adverse Recommendation Change).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, amend amend, qualify or modify modify, or publicly propose to withhold, withdraw, amend, qualify or modify, in any manner adverse to Parent and or Merger Sub Sub, the Company Recommendation, (B) adopt, approve, endorse, adopt recommend or declare advisable, or publicly propose to adopt, approve, endorse, recommend or declare advisable, an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer pursuant to Rule 14d-2 of the Exchange Act or (y) issue a public press release within ten Business Days following the first public announcement of any Acquisition Proposal by a Third Party (other than by commencement of a tender or exchange offer) reaffirming the Company Recommendation, (D) fail to publicly reaffirm the Company Recommendation within ten Business Days after Parent so requests in writing (it being understood that the Company will have no obligation to make such reaffirmation on more than three separate occasions), (DE) fail to include the Company Recommendation in the Proxy Statement, (F) take any formal action or make any recommendation or public statement in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or a committee thereof) to the Company stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication) (it being understood that the Company Board (or a committee thereof) may refrain from taking a position with respect to an Acquisition Proposal that is a tender offer or exchange offer until the close of business on the 10th Business Day after the commencement of a tender or exchange offer in connection with such Acquisition Proposal without such action being considered a violation of this Section 6.03) or (G) resolve or publicly propose to take any action described in the foregoing clauses (A) through (CF) (each of the foregoing actions described in this clause clauses (iA) through (G) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, or other contract or agreement or Contract with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement Agreement, or such other permitted confidentiality agreement, pursuant to Section 6.02) with respect to (each, an “Alternative Acquisition ProposalAgreement”). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a)this Agreement to the contrary, at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board or any committee thereof may, if it determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) (1) make an Adverse Recommendation Change and/or (B) cause the Company in response to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal or (which agreement shall 2) make an Adverse Recommendation Change of the type described in clauses (A), (D), or (E) (or the type described in clause (G) with respect to clause (A), (D) or (E)) in response to any positive material event, change or development with respect to the Company or any of its Subsidiaries that was not known to or reasonably foreseeable by the Company Board as of the date hereof and not relating to (x) any Acquisition Proposal or (y) the mere fact, in and of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes in the market price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause of any of the foregoing in this clause (y) may be entered taken into concurrently with account) (each such terminationevent, change or development, an “Intervening Event”), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)None of the Company, neither the Board of Directors of the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Schedule 14D-9, withdraw, amend adversely qualify or modify in (or resolve, determine or publicly propose to do any manner adverse to Parent and Merger Sub of the foregoing) the Company Board Recommendation, (Bii) approvefollowing the date any Acquisition Proposal (or any material modification thereto) is made or commenced, endorseor an intention to make or commence any Acquisition Proposal (or any material modification thereto) is publicly proposed or announced, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of reaffirm (publicly, if so requested) the Company Common Stock Board Recommendation, within ten Business Days three business days after a written request by Parent to do so (provided or, if earlier, by the second business day prior to the then-scheduled Expiration Date of the Offer) (it being understood that Parent may only make one such request only two (2) times in the aggregate), (iii) fail to publicly recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser or any of their Affiliates) for the Shares within ten (10) business days after the commencement of such offer), (Div) resolve adopt, approve, recommend, submit to the vote of securityholders or declare advisable any Acquisition Proposal or the entry into any Company Acquisition Agreement (or resolve, determine or publicly propose to take do any of the foregoing) or (v) approve any transaction under, or any transaction resulting in any Third Party becoming an “interested stockholder” under, Section 203 of the DGCL (or resolve, determine or publicly propose to do any of the foregoing) (any action described in the foregoing clauses (Ai) through (C) (the foregoing actions described in this clause (iv) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of except as expressly permitted by this Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below5.4.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)None of the Company, neither the Board of Directors of the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Schedule 14D-9, withdraw, amend adversely qualify or modify in (or resolve, determine or publicly propose to do any manner adverse to Parent and Merger Sub of the foregoing) the Company Board Recommendation, (Bii) approvefollowing the date any Acquisition Proposal (or any material modification thereto) is made or commenced, endorseor an intention to make or commence any Acquisition Proposal (or any material modification thereto) is publicly proposed or announced, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of reaffirm (publicly, if so requested) the Company Common Stock Board Recommendation, within ten Business Days three business days after a written request by Parent to do so (provided or, if earlier, by the second business day prior to the then-scheduled Expiration Date of the Offer) (it being understood that Parent may only make one such request only two (2) times in the aggregate), (iii) fail to publicly recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser or any of their Affiliates) for the Shares within ten (10) business days after the commencement of such offer), (Div) resolve adopt, approve, recommend, submit to the vote of securityholders or declare advisable any Acquisition Proposal or the entry into any Company Acquisition Agreement (or resolve, determine or publicly propose to take do any of the foregoing) or (v) approve any transaction under, or any transaction resulting in any Third Party becoming an “interested stockholder” under, Section 203 of the DGCL (or resolve, determine or publicly propose to do any of the foregoing) (any action described in the foregoing clauses (Ai) through (C) (the foregoing actions described in this clause (iv) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve), endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to except as expressly permitted by this Section 6.02) with respect to an Acquisition Proposal5.4. (b) (i) Notwithstanding anything to the contrary contained in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder ApprovalOffer Acceptance Time, the Board of Directors of the Company may make an Adverse Change Recommendation or, subject to the payment of the Termination Fee in accordance with Section 8.3, terminate this Agreement pursuant to Section 8.1(e) to enter into a definitive agreement in the event of a Superior Proposal (a “Specified Acquisition Agreement”), if the Company receives an Acquisition and only if: (i) such Superior Proposal that did not result from a material breach of Section 6.02, and 5.3; (ii) the Board of Directors of the Company Board determines in good faith (faith, after consultation with a Company Financial Advisor the Company’s financial advisor and outside legal counsel, that the failure to make the Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law; (iii) Parent shall have received from the Company prior written notice of the Company’s intention to make an Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement at least four (4) business days prior to making any Adverse Change Recommendation or terminating this Agreement to enter into a Specified Acquisition Agreement (a “Change of Recommendation Notice”), after ; and (iv) the Company shall comply with clauses (A) through (E) (as applicable) as follows: (A) prior to giving effect to all clauses (B) through (E), the Board of Directors of the adjustments to Company shall have determined in good faith, after consultation with the terms in this Agreement proposed in writing by Parent Company’s financial advisor and Merger Sub in response to such Acquisition Proposaloutside legal counsel, that (i) such Acquisition Proposal constitutes a Superior Proposal; (B) the Company shall have complied with Section 5.3(c) with respect to such Acquisition Proposal and shall have provided to Parent in writing the material terms and conditions of such Acquisition Proposal, the most current version of the proposed agreement under which such Acquisition Proposal is proposed, and the identity of the Person making such Acquisition Proposal; (iiC) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent Parent desires to negotiate, during the four (4) business day period provided in the foregoing clause (iii) of this Section 5.4(b) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, so that the Acquisition Proposal would no longer constitute a Superior Proposal; (D) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company’s financial advisor, the Board of Directors of the Company shall have determined in good faith that such Acquisition Proposal remains a Superior Proposal and that the failure to take make the actions below Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement would be reasonably likely to be inconsistent with its the fiduciary duties under Applicable Law, of the Board of Directors of the Company Board may under applicable Law; and (AE) make an Adverse Recommendation Change and/or (B) cause if the Company intends to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Specified Acquisition Agreement, the Company shall have complied with Section 8.1(e) and Section 8.3(b). For the avoidance of doubt, the provisions of this Section 5.4(b) shall also apply to any material amendment to any Acquisition Proposal (in which agreement case such amendment shall require a new Change of Recommendation Notice and the Company shall be entered into concurrently with such termination), subject required to compliance comply again with the terms provisions of paragraph this Section 5.4(b) except that any reference to four (4) business days shall instead be two (2) business days) or any successive Acquisition Proposals. (c) Notwithstanding anything to the contrary herein, at any time prior to the Offer Acceptance Time, the Board of Directors of the Company may make an Adverse Change Recommendation with respect to an Intervening Event, if and only if: (i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make the Adverse Change Recommendation would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law; (ii) belowParent shall have received from the Company a Change of Recommendation Notice at least four (4) business days prior to making any Adverse Change of Recommendation, describing the Intervening Event in reasonable detail (including the underlying facts giving rise thereto and the reasons for such Adverse Change of Recommendation); (iii) during the four (4) business day period provided in the foregoing clause (ii), the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent Parent desires to negotiate, with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, that would obviate the need to make an Adverse Change Recommendation; and (iv) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel, the Board of Directors of the Company shall have determined in good faith that the failure to make the Adverse Change Recommendation would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law. The provisions of this Section 5.4(c) shall also apply to any material change to the facts and circumstances relating to an Intervening Event, in which case such change shall require a new Change of Recommendation Notice and the Company shall be required to comply again with the provisions of this Section 5.4(c) (except that any reference to four (4) business days shall instead be two (2) business days).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither none of the Company Board, the Special Committee or any other committee of the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify modify, in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to adopt or recommend, an Acquisition Proposal or Superior Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, into any agreement or Contract Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02), (v) with respect fail to include the Company Recommendation in the Proxy Statement, (vi) other than as described in clause (iii) above, fail to publicly reaffirm the Company Recommendation within three (3) Business Days after receipt of a written request by Parent to provide such affirmation following public disclosure of an Acquisition ProposalProposal other than an Acquisition Proposal made pursuant to a commenced tender or exchange offer or (vii) resolve or publicly propose to take any action described in the foregoing clauses (i) through (vi) (each of the foregoing actions described in clauses (i) through (vii) being referred to as an “Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a)this Agreement to the contrary, at any time prior to obtaining the Stockholder ApprovalApproval (and subject to the Company’s or the Company Board’s, as applicable, compliance with this Section 6.03, Section 6.02 and Section 9.04), the Company Board (acting upon the recommendation of the Special Committee) may, if the Company receives an Acquisition Proposal that did not result from a material breach Board (acting upon the recommendation of Section 6.02, and the Company Board Special Committee) determines in good faith (after consultation with a the Company Financial Advisor and outside legal counsel), that the failure to do so would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Applicable Law, (A) make an Adverse Recommendation Change in response to either (1) a Superior Proposal received after giving effect to all the date hereof or (2) any material fact, event, change, development or circumstances occurring or arising after the date of this Agreement not known or reasonably foreseeable by the Company Board as of the date hereof, which fact, event, change, development or circumstances becomes known to the Company Board prior to the Stockholder Approval (such material fact, event, change, development or circumstance, an “Intervening Event”); provided, however, that in no event shall the receipt, existence or terms of an Acquisition Proposal, or any inquiry, indication of interest, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or the consequences thereof constitute an Intervening Event, or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(g) and to authorize and simultaneously to enter into an Alternative Acquisition Agreement concerning a transaction that constitutes a Superior Proposal, subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable. (ii) In the case of an Adverse Recommendation Change sought to be made under clause (1) of Section 6.03(b)(i)(A) or termination of this Agreement pursuant to Section 8.01(g) in response to a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made and (y) no termination of this Agreement pursuant to Section 8.01(g) may be made, in either case (A) until after the fourth (4th) Business Day following written notice from the Company advising Parent that the Company Board, absent any revision to the terms and conditions of this Agreement and the Capital Commitment Letter, (acting upon the recommendation of the Special Committee) intends to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(g) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including, if applicable, the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of all relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of two (2) Business Days, and compliance with this Section 6.03(b) with respect to such new notice); and (B) unless during such four (4) Business Day period (or two (2) Business Day period following an amended proposal), the Company shall, and shall cause its Representatives to, to the extent requested by Parent, (1) negotiate with Parent in good faith to make such adjustments to the terms in and conditions of this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, the Capital Commitment Letter so that (i) such Acquisition Proposal constitutes would cease to constitute a Superior Proposal and (ii2) permit Parent and Parent’s Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto, and at the end of such four (4) Business Day period (or two (2) Business Day period following an amended proposal), the Company Board (acting upon the recommendation of the Special Committee) again makes the determination in good faith (x) after consultation with the Company Financial Advisor and outside legal counsel, that the failure to take make an Adverse Recommendation Change or authorize the actions below termination of this Agreement would be reasonably likely to be inconsistent with its fiduciary duties under Applicable LawLaw and (y) after taking into account any adjustment or modification to the terms of this Agreement proposed by Parent, that the Acquisition Proposal continues to be a Superior Proposal. None of the Company, the Company Board may (A) make or any committee of the Company Board shall enter into any agreement with any Third Party to limit or not to give prior notice to Parent of its intention to effect an Adverse Recommendation Change and/or (B) cause the Company or to terminate this Agreement in light of a Superior Proposal. (iii) In the case of an Intervening Event, no Adverse Recommendation Change pursuant to this Section 8.01(h6.03(b) and authorize may be made (A) until after the fourth (4th) Business Day following written notice from the Company advising Parent that the Company Board or any committee thereof intends to enter take such action and specifying the facts underlying the determination by the Company Board (acting upon the recommendation of the Special Committee) that an Intervening Event has occurred, and the reason for the Adverse Recommendation Change, in reasonable detail (a “Notice of Intervening Event”); (B) unless during such four (4) Business Day period, the Company shall, and shall cause its Representatives to, to the extent requested by Parent, negotiate with Parent in good faith to enable Parent to amend this Agreement and the Capital Commitment Letter in such a manner that obviates the need for an Adverse Recommendation Change; and (C) unless, by the expiration of such four (4) Business Day period, the Company Board (acting upon the recommendation of the Special Committee) determines in good faith, taking into consideration any amendments to this Agreement and the Capital Commitment Letter proposed by Parent (after consultation with the Company Financial Advisor and outside legal counsel), that the failure to effect an Adverse Recommendation Change would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Applicable Law. Any material change to the facts and circumstances relating to such Intervening Event shall require a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement new Notice of Intervening Event and the Company shall be entered into concurrently with such termination), subject required to compliance comply again with the terms requirements of paragraph this Section 6.03(b)(iii). (c) Nothing contained in Section 6.02 or this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) belowmaking any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board (acting upon the recommendation of the Special Committee), after consultation with outside legal counsel, the failure to do so would be inconsistent with the directors’ fiduciary duties under Applicable Law or any disclosure requirements under Applicable Law; provided, however, that that the Company and the Company Board may not effect an Adverse Recommendation Change, except to the extent permitted by Section 6.03(b). In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company, shall not constitute an Adverse Recommendation Change or a proposal by the Company Board to withdraw or modify its recommendation of this Agreement, the Merger or the other transactions contemplated by this Agreement.

Company Recommendation. (a) Subject to Except as provided in Section 6.03(b5.3(e) and Section 6.03(c5.4(b), neither none of the Company, the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Proxy Statement/Prospectus, withdraw, amend adversely qualify or modify (or resolve, determine or propose publicly to withhold, fail to include in any manner adverse to Parent and Merger Sub (or remove from) the Proxy Statement/Prospectus, withdraw, adversely qualify or modify) the Company Board Recommendation, (Bii) adopt, approve, endorserecommend, adopt submit to stockholders or recommend an declare advisable (or resolve, determine or propose publicly to adopt, approve, recommend, submit to stockholders or declare advisable) any Acquisition Proposal, including any Superior Proposal (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (Ai) through and (C) (the foregoing actions described in this clause (iii) being referred to as an a “Company Adverse Recommendation ChangeChange Recommendation”) or (iiiii) approve, endorse execute or recommendenter into, or propose publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract an Acquisition Agreement (other than an Acceptable Confidentiality Agreement pursuant to the extent permitted by Section 6.02) with respect to an Acquisition Proposal5.3(b)). (b) (i) Notwithstanding anything in the provisions of Section 6.02(a) 5.3 and Section 6.03(a5.4(a), at any time prior to obtaining the time the Company Stockholder ApprovalApproval is obtained, the Company Board may, in response to a Superior Proposal received by the Company after the date of this Agreement, (x) make a Company Adverse Change Recommendation in connection therewith and/or (y) terminate this Agreement pursuant to Section 8.1(g), take the actions set forth in Section 5.3(a)(i)(D), pay the Termination Fee and enter into a definitive agreement with respect to such Superior Proposal, provided that any action described in this Section 5.4(b) may be taken if and only if: (i) the Company receives an a bona fide Acquisition Proposal that did not result from a material breach of Section 6.02, and 5.3(a) or Section 5.4(a); (ii) the Company Board determines shall have determined in good faith (faith, after consultation with a the Company Financial Advisor and the Company’s outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal Proposal, and (ii) after consultation with the Company’s outside legal counsel, that the failure to take the actions below such action with respect to such Superior Proposal would be reasonably likely to be inconsistent with its the fiduciary duties under Applicable Law, of the Company Board may under applicable Law; (Aiii) make an Adverse Recommendation Change and/or (B) cause Parent shall have received from the Company prior written notice of the Company’s express intention to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to approve or recommend or enter into a definitive agreement providing for with respect to the Superior Proposal at least five (5) business days prior to the date of such approval, recommendation or entry; and (iv) (A) the Company shall have provided to Parent in writing the material terms and conditions of the Superior Proposal and copies of all material documents relating to the Superior Proposal; (B) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate in good faith with Parent) during the five (5) business day period provided in the foregoing clause (iii) of this Section 5.4(b) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, so that the Superior Proposal would no longer constitute a transaction Superior Proposal, if Parent, in its discretion, proposes to make such adjustments and (C) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company Financial Advisor, the Company Board shall have determined in good faith that constitutes the Superior Proposal remains a Superior Proposal, and after consultation with the Company’s outside legal counsel, that the failure to approve or recommend or enter into a definitive agreement with respect to the Superior Proposal would be inconsistent with the fiduciary duties of the Company Board under applicable Law. Notwithstanding the foregoing, any material amendment to the Superior Proposal shall be deemed to be a new Acquisition Proposal that is a Superior Proposal (which agreement for purposes of this Section 5.4(b) and the Company shall be entered into concurrently with such termination), subject to compliance again comply with the terms provisions of paragraph this Section 5.4(b) (iiexcept that any reference to five (5) belowbusiness days shall instead be three (3) business days).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, fail to make, amend or modify in any manner adverse to the transactions contemplated by this Agreement, Parent or Merger Sub, publicly propose to withhold, withdraw, amend or modify in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, or otherwise make any public statement or proposal inconsistent with, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to approve, endorse, adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock publicly announced Acquisition Proposal within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement following the public announcement of such offer)Acquisition Proposal, (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (iiiv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal.Proposal or Acquisition Transaction or that could be reasonably expected to materially delay or materially impair the transactions contemplated by this Agreement or (v) resolve or publicly propose to take any action described in the foregoing clauses (i) through (iv) (each of the foregoing actions described in clauses (i) through (v) being referred to as an “Adverse Recommendation Change”). ACTIVE/110954383.28 (b) (i) Notwithstanding anything in Section 6.02(a) 6.02 and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an has received a bona fide written Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor financial advisor and outside legal counsel, it being understood that with respect to the matter described in clause (ii) below, only consultation with outside legal counsel shall be required), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change described in clause (i) of the definition thereof and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)the provisions described below, neither Adeza’s board of directors agreed to recommend that the holders of the Shares accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if necessary under applicable law, adopt the Merger Agreement in accordance with the applicable provisions of DGCL. This is referred to as the “Company Recommendation.” Adeza’s board of directors also agreed to include the Company Board Recommendation in the Schedule 14D-9 and to permit Cytyc to include the Company Recommendation in this Offer to Purchase and related Offer documents. Subject to the provisions described below, the Merger Agreement provides that neither Adeza’s board of directors nor any committee thereof shall (i) (A) fail to make, withhold, will withdraw, qualify, modify, change or amend or modify in any manner adverse to Parent and Merger Sub Cytyc or Purchaser (including pursuant to the Schedule 14D-9 or any amendment thereto): • the Company Recommendation, (B) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance ; • the approval by Adeza’s board of any Third Party tender offer or exchange offer for the shares directors of the Company Common Stock within ten Business Days after a written request Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger; or • the approval by Parent the compensation committee of Adeza’s board of directors of certain Adeza compensation arrangements as “employment compensation, severance or other employee benefit arrangements” for purposes of satisfying the requirements of the non-exclusive safe-harbor of Rule 14d-10(d)(2) under the Exchange Act. Table of Contents These actions are referred to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (Merger Agreement as a “Company Change in Recommendation.” Notwithstanding any other provisions in the foregoing actions described Merger Agreement, Adeza’s board of directors may effect a Company Change in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining before the Stockholder Approvalcompletion of the Merger, if the Company receives if: • Adeza’s board of directors has received an Acquisition Proposal (that has not been withdrawn) that constitutes a Superior Proposal, and such Acquisition Proposal did not result from a material breach or violation of the no solicitation provisions of the Merger Agreement; • Adeza’s board of directors determines in good faith, after consultation with its outside legal counsel, and after considering in good faith any counter-offer or proposal made by Cytyc during the two-day period described below, that the failure to effect a Company Change in Recommendation in light of the Superior Proposal would be a breach of Section 6.02its fiduciary duties to Adeza’s stockholders under applicable law; • at least two days prior to the Company Change in Recommendation, Adeza provided Cytyc a written notice of its intention to make the Company Change in Recommendation, which we refer to as a “notice of change in recommendation.” Such notice of change in recommendation shall not be deemed to be, in and of itself, a Company Change in Recommendation, and must specify the material terms and conditions of the Superior Proposal, including a copy of the Superior Proposal and identifying the person making the Superior Proposal; • during the two-day period after Cytyc’s receipt of the notice of change in recommendation, Adeza has given Cytyc the opportunity to meet with Adeza and its representatives, and at Cytyc’s request, has negotiated in good faith regarding the terms of possible revisions to the terms of the Merger Agreement; and • Cytyc does not, within the two-day period after Cytyc’s receipt of a notice of change in recommendation, make an offer that Adeza’s board of directors determines in good faith, after consultation with its financial advisor and outside legal counsel, to be at least as favorable to Adeza’s stockholders as the Superior Proposal. The Merger Agreement provides that any amendment to the financial terms or any other material terms of a Superior Proposal require Adeza to deliver a new notice of change in recommendation and a new one-day response period. Notwithstanding the foregoing provisions, at any time before the completion of the Merger, Adeza’s board of directors may effect a Company Board Change in Recommendation other than in connection with a Superior Proposal if: • Adeza’s board of directors determines in good faith (after consultation with its outside legal counsel that the failure to effect a Company Financial Advisor Change in Recommendation could reasonably be expected to result in a breach of its fiduciary duties to Adeza’s stockholders under applicable law; • at least two days prior to such Company Change in Recommendation, Adeza provided Cytyc with a notice of change in recommendation specifying in sufficient detail the circumstances for such proposed Company Change in Recommendation; and outside legal counsel), after giving effect to all • during the two-day period following Cytyc’s receipt of the adjustments notice of change in recommendation, Adeza has given Cytyc the opportunity to meet with Adeza and its representatives, and at Cytyc’s request, negotiated in good faith regarding the terms of possible revisions to the terms in this Agreement proposed in writing by Parent and of the Merger Sub in response Agreement. Adeza may not enter into any agreement (other than a confidentiality agreement permitted under the no solicitation provisions of the Merger Agreement), including a letter of intent, with respect to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal unless the Merger Agreement has been or concurrently is validly terminated by its terms and (ii) Cytyc has received, Table of Contents by wire transfer of immediately available funds, any amounts due to Cytyc under the failure termination fee provisions of the Merger Agreement described below. For purposes of this Offer to take Purchase and the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.Merger Agreement:

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)None of the Company, neither the Board of Directors of the Company Board nor or any committee thereof shall (i) (A) withhold, fail to make, withholdinclude in (or remove from) the Schedule 14D-9, withdraw, amend adversely qualify or modify in (or resolve, determine or publicly propose to do any manner adverse to Parent and Merger Sub of the foregoing) the Company Board Recommendation, (Bii) approvefollowing the date any Acquisition Proposal (or any material modification thereto) is made or commenced, endorseor an intention to make or commence any Acquisition Proposal (or any material modification thereto) is publicly proposed or announced, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of reaffirm (publicly, if so requested) the Company Common Stock Board Recommendation, within ten Business Days three business days after a written request by Parent to do so (provided that or, if earlier, by the second business day prior to the then-scheduled Expiration Date of the Offer), (iii) fail to publicly recommend against acceptance of any tender offer or exchange offer (other than the Offer or any other tender offer or exchange offer by Parent may only make one such request or Purchaser or any of their Affiliates) for the Shares within ten (10) business days after the commencement of such offer), (Div) resolve adopt, approve, recommend, submit to the vote of securityholders or declare advisable any Acquisition Proposal or the entry into any Company Acquisition Agreement (or resolve, determine or publicly propose to take do any of the foregoing) or (v) approve any transaction under, or any transaction resulting in any Third Party becoming an “interested stockholder” under, Section 203 of the DGCL (or resolve, determine or publicly propose to do any of the foregoing) (any action described in the foregoing clauses (Ai) through (C) (the foregoing actions described in this clause (iv) being referred to as an “Adverse Recommendation ChangeChange Recommendation”) or (ii) approve), endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to except as expressly permitted by this Section 6.02) with respect to an Acquisition Proposal5.4. (b) (i) Notwithstanding anything to the contrary contained in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder ApprovalOffer Acceptance Time, the Board of Directors of the Company may make an Adverse Change Recommendation or, subject to the substantially concurrent payment of the Termination Fee in accordance with Section 8.3, terminate this Agreement pursuant to Section 8.1(e) to enter into a definitive agreement in the event of a Superior Proposal (a “Specified Acquisition Agreement”), if the Company receives an Acquisition and only if: (i) such Superior Proposal that did not result from a material breach of Section 6.02, and 5.3; (ii) the Company has complied in all material respects with its obligations under Sections 5.3 and 5.4; (iii) the Board of Directors of the Company determines in good faith (faith, after consultation with a Company Financial Advisor the Company’s financial advisor and outside legal counsel, that the failure to make the Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law; (iv) Parent shall have received from the Company prior written notice of the Company’s intention to make an Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement at least four (4) business days prior to making any Adverse Change Recommendation or terminating this Agreement to enter into a Specified Acquisition Agreement (a “Change of Recommendation Notice”), after which Change of Recommendation Notice shall not, in and of itself, constitute an Adverse Change Recommendation; and (v) the Company shall comply with clauses (A) through (E) (as applicable) as follows: (A) prior to giving effect to all clauses (B) through (E), the Board of Directors of the adjustments to Company shall have determined in good faith, after consultation with the terms in this Agreement proposed in writing by Parent Company’s financial advisor and Merger Sub in response to such Acquisition Proposaloutside legal counsel, that (i) such Acquisition Proposal constitutes a Superior Proposal; (B) the Company shall have complied with Section 5.3(c) with respect to such Acquisition Proposal and shall have provided to Parent in writing the material terms and conditions of such Acquisition Proposal, the most current version of the proposed agreement under which such Acquisition Proposal is proposed, and the identity of the Person making such Acquisition Proposal; (iiC) the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent Parent desires to negotiate, during the four (4) business day period provided in the foregoing clause (iii) of this Section 5.4(b) with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, so that the Acquisition Proposal would no longer constitute a Superior Proposal; (D) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and the Company’s financial advisor, the Board of Directors of the Company shall have determined in good faith that such Acquisition Proposal remains a Superior Proposal and that the failure to take make the actions below Adverse Change Recommendation or terminate this Agreement to enter into a Specified Acquisition Agreement would be reasonably likely to be inconsistent with its the fiduciary duties under Applicable Law, of the Board of Directors of the Company Board may under applicable Law; and (AE) make an Adverse Recommendation Change and/or (B) cause if the Company intends to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Specified Acquisition Agreement, the Company complies with Section 8.1(e) and Section 8.3(b). For the avoidance of doubt, the provisions of this Section 5.4(b) shall also apply to any material amendment to any Acquisition Proposal (in which agreement case such amendment shall require a new Change of Recommendation Notice and the Company shall be entered into concurrently with such termination), subject required to compliance comply again with the terms provisions of paragraph this Section 5.4(b) except that any reference to four (4) business days shall instead be two (2) business days) or any successive Acquisition Proposals. (c) Notwithstanding anything to the contrary herein, at any time prior to the Offer Acceptance Time, the Board of Directors of the Company may make an Adverse Change Recommendation with respect to an Intervening Event, if and only if: (i) the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make the Adverse Change Recommendation would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law; (ii) belowParent shall have received from the Company a Change of Recommendation Notice at least four (4) business days prior to making any Adverse Change of Recommendation, describing the Intervening Event in reasonable detail (including the underlying facts giving rise thereto and the reasons for such Adverse Change of Recommendation), which Change of Recommendation Notice shall not, in and of itself, constitute an Adverse Change Recommendation; (iii) during the four (4) business day period provided in the foregoing clause (ii), the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent Parent desires to negotiate, with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, that would obviate the need to make an Adverse Change Recommendation; and (iv) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel, the Board of Directors of the Company shall have determined in good faith that the failure to make the Adverse Change Recommendation would be inconsistent with the fiduciary duties of the Board of Directors of the Company under applicable Law. The provisions of this Section 5.4(c) shall also apply to any material change to the facts and circumstances relating to an Intervening Event, in which case such change shall require a new Change of Recommendation Notice and the Company shall be required to comply again with the provisions of this Section 5.4(c), except that any reference to four (4) business days shall instead be two (2) business days.

Company Recommendation. Except as permitted by Section 4.8(e), the Company shall cause the Proxy Statement to include the recommendation of the Company Board to the Company’s stockholders that they give the Company Stockholder Approval (a) Subject to the “Company Recommendation”). Except as permitted by Section 6.03(b) and Section 6.03(c4.8(e), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, amend withdraw or modify in any a manner adverse to Parent and Wintrust or Merger Sub Co., or propose publicly to withdraw or modify in a manner adverse to Wintrust or Merger Co., the approval or recommendation by the Company Board of this Agreement or the Merger (it being understood that taking a neutral position or no position with respect to any Company Takeover Proposal shall be considered an amendment or adverse modification), (ii) enter into, approve, adopt or recommend, or propose publicly to enter into, approve, adopt or recommend, any Company Takeover Proposal or any letter of intent, term sheet, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other Contract or instrument constituting or relating to any Company Takeover Proposal (other than a confidentiality agreement permitted by this Section 4.8), (iii) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation, or any restrictive provision of any applicable anti-takeover provision in the Articles of Incorporation or bylaws of the Company, inapplicable to any transactions contemplated by a Company Takeover Proposal, or take any other action inconsistent with the Company Recommendation, (Biv) approvewaive the benefits of, endorseprovide any consent under, adopt or recommend an Acquisition Proposalpermit any noncompliance with, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommendenforce, or publicly propose agree to approvemodify in any manner, endorse any confidentiality, standstill or recommend, or cause or permit similar agreement to which the Company or any Company Subsidiary is a party or (v) authorize any of, or resolve, commit or agree to take any of, the foregoing actions (any of the foregoing, a “Company Recommendation Change”). Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any Representative of the Company shall be deemed to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with be a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) belowChange.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, or fail to make, amend or modify, or publicly propose to withhold, withdraw, amend or modify modify, in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, or otherwise make any public statement or proposal inconsistent with, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter intointo any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or Contract other similar agreement with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant Agreement) or (v) resolve or publicly propose to Section 6.02take any action described in the foregoing clauses (i) with respect through (iv) (each of the foregoing actions described in clauses (i) through (iv) (or clause (v) solely to the extent related to clauses (i) through (iv)) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and this Agreement to the contrary, including Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if Approval (and subject to the Company’s or the Company receives an Acquisition Proposal that did not result from a material breach of Board’s, as applicable, compliance with Section 6.02, this Section 6.03 and Section 9.04), the Company Board or the Special Committee may, if it determines in good faith (after consultation with a the Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its the fiduciary duties of the Company Board under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or as a result of either (1) a Superior Proposal or (2) any fact, event, change, development or circumstance not known or reasonably foreseeable by the Company Board as of the date hereof and not relating to any Acquisition Proposal or Inquiry (such fact, event, change, development, circumstance or consequences thereof, an “Intervening Event”) or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither Neither the Board of Directors of the Company Board nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, qualify, amend or modify in any a manner adverse to Parent and or Merger Sub Sub, the Company RecommendationRecommendation or make any public announcement inconsistent with the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to an Acquisition Proposal shall be considered an adverse modification), (Bii) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party if a tender offer or exchange offer for the shares of the Company Common Stock that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent, fail to file, within ten (10) Business Days after a following Parent’s written request by Parent to do so (provided so, a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that Parent may only make one the shareholders reject such request after commencement of such offer)Acquisition Proposal, (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (iiiii) approve, endorse recommend or recommenddeclare advisable any Acquisition Proposal made or received after the date hereof, or publicly propose to approve(iv) enter into any letter of intent, endorse or recommendmemorandum of understanding, or cause or permit the Company or any Subsidiary of the Company to execute or enter intoagreement in principle, any acquisition agreement, merger agreement or Contract other agreement constituting or relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement as permitted under Section 5.2(c)) or (v) fail to include the Company Recommendation in the Schedule 14D-9, (vi) release any Person from, or grant any waiver of, or fail to enforce any standstill or similar agreement, unless the Company’s Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that it would be inconsistent with its fiduciary duties under applicable Law not to do so, or (vii) take any action pursuant to which any Person (other than Parent, Merger Sub or their respective Affiliates) or Acquisition Proposal would become exempt from or not otherwise subject to any Takeover Law (any of the actions described in clauses (i) through (vii) of this Section 6.02) with respect to an Acquisition Proposal5.3(a), a “Company Change of Recommendation”). (b) (iNotwithstanding Section 5.3(a) Notwithstanding or anything to the contrary set forth in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder ApprovalAcceptance Time, if the Company’s Board of Directors (or any committee thereof) may, in the event that the Company’s Board of Directors (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, that a failure to effect a Company Change of Recommendation would reasonably be expected to be inconsistent with its fiduciary duties to the Company receives an Acquisition and its shareholders under applicable Law, effect any Company Change of Recommendation pursuant to any clause of Section 5.3(a); provided, that (i) the Company has provided at least twenty-four (24) hours prior written notice to Parent that it intends to effect a Company Change of Recommendation, describing in reasonable detail the reasons for such Company Change of Recommendation (a “Recommendation Change Notice”) and, in the case of a Superior Proposal, including the material terms and conditions of such Superior Proposal and attach a copy of the most current draft of any written agreement relating thereto (it being agreed that did the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not result from constitute a Company Change of Recommendation for purposes of this Agreement); (ii) if requested by Parent after receipt of such notice, the Company shall have discussed and negotiated in good faith and have made its Representatives available to discuss with Parent’s Representatives and negotiate in good faith (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Pacific time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending four (4) Business Days later at 5:00 p.m. Pacific time; provided, however that in the event there is a material breach change to the facts and circumstances underlying the decision to effect a Company Change of Section 6.02Recommendation (including any amendment to any material term of a Superior Proposal), and the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply again with the requirements of this Section 5.3, except that references to the four (4) Business Day period in this clause; (ii) shall be deemed references to a two (2) Business Day period; and (iii) the Company’s Board determines of Directors (or any committee thereof) shall have determined in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to considering in good faith the terms in of any proposed amendment or modification to this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition ProposalAgreement, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below effect a Company Change of Recommendation would still reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, to the Company and its shareholders under applicable Law. Any Company Change of Recommendation shall not change the approval of this Agreement or any other approval of the Board may (A) make an Adverse Recommendation Change and/or (B) cause of Directors of the Company in any respect that would have the effect of causing any Takeover Law to be applicable to any of the Transactions. Nothing in this Section 5.3 shall in any way limit or otherwise affect Parent’s right to terminate this Agreement pursuant to under Section 8.01(h8.1(e). (c) and authorize Nothing in this Agreement shall prohibit or restrict the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal or the Company’s Board of Directors (which agreement shall be entered into concurrently with such terminationor any committee thereof) from, without limiting the generality of Section 5.3(a), subject (i) taking and disclosing to compliance the Company’s shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with the terms provisions of paragraph Rule 14d-9 promulgated under the Exchange Act or (ii) belowissuing a “stop look and listen” statement pending disclosure of its position thereunder as contemplated by Rule 14d-9(f) under the Exchange Act.

Company Recommendation. (a) Subject to Section 6.03(b5.3(b) and Section 6.03(c5.3(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, qualify, amend or modify, or publicly propose to withhold, withdraw, qualify, amend or modify modify, in any manner adverse to the transactions contemplated by this Agreement, Parent and Merger Sub or Purchaser, the Company’s recommending that the stockholders of the Company accept the Offer and tender their Shares to Purchaser pursuant to the Offer (the “Company Recommendation”), or fail to include the Company Recommendation in the Schedule 14D-9, (Bii) approve, endorseadopt or recommend, or publicly propose to approve, adopt or recommend recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party third party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute execute, or enter into, any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or Contract other similar agreement with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.025.2) with respect or (v) resolve or publicly propose to take any action described in the foregoing clauses (i) through (iv) (each of the foregoing actions described in clauses (i) through (v) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in this Agreement to the contrary, including Section 6.02(a) and Section 6.03(a5.3(a), at any time prior to obtaining the Stockholder ApprovalOffer Acceptance Time, if the Company receives an Acquisition in response to either (1) a Superior Proposal that is first made after the date hereof and did not result from a material breach of Section 6.025.2 or this Section 5.3, and or (2) any material fact, event, change, development or circumstance that was not known, or reasonably foreseeable, by the Company Board as of the date hereof (or, if known or reasonably foreseeable, the material consequences of which were not known or reasonably foreseeable) and not relating to (x) any Acquisition Proposal or (y) any changes in the market price or trading volume of Common Stock, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such change may be taken into account) (such fact, event, change, development, circumstance or consequences thereof, an “Intervening Event”), the Company Board may, if it determines in good faith (after consultation with a Company Financial Advisor its financial advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h7.1(c)(ii) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) or iii below, as applicable.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall not (i) (A) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify modify, in any manner adverse to the transactions contemplated by this Agreement, Parent and or Merger Sub Sub, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) approve, endorse or enter into, or publicly propose to approve, endorse or enter into, or cause or permit the Company or any Subsidiary of the Company to execute, or enter into, any letter of intent, agreement, Contract, commitment or agreement in principle (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.02(b)) or other arrangement constituting or that would reasonably be expected to lead to an Acquisition Proposal or enter into any agreement, Contract or commitment or other arrangement requiring the Company to abandon, terminate, breach or fail to consummate the transactions contemplated by this Agreement, (v) fail to include the Company Recommendation in the Proxy Statement or (vi) resolve or publicly propose to take any action described in the foregoing clauses (Ai) through (Cv) (each of the foregoing actions described in this clause clauses (i) through (vi) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal). (b) (i) Notwithstanding anything in Section 6.02(a) Subject to the Company’s compliance with Sections 6.02 and Section 6.03(a)6.03, at any time prior to obtaining the Stockholder Shareholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board may, if it determines in good faith (after consultation with a Company Financial Advisor its financial advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or in response to either (1) a Superior Proposal received after the date hereof or (2) any material fact, event, change, development or circumstance not known or reasonably foreseeable by the Company Board as of the date hereof (or, if known, the consequences of which were not known nor reasonably foreseeable) and not relating to any Acquisition Proposal (such fact, event, change, development, circumstance or consequences thereof, an “Intervening Event”) or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable. (ii) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made and (y) no termination of this Agreement pursuant to Section 8.01(h) may be made, in either case: (A) until after the third Business Day following written notice from the Company advising Parent that the Company Board intends to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(h) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including, if applicable, the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any other relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of two Business Days, and compliance with this Section 6.03(b) with respect to such new notice); (B) unless during such three Business Day period (or two Business Day period following an amended proposal), the Company and its Subsidiaries shall, and shall cause their respective Representatives to, to the extent requested by Parent, negotiate with Parent and its Representatives in good faith to make such adjustments to the terms and conditions of this Agreement, the Guarantee and the Financing Commitment Letters as would enable the Company Board to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; and (C) unless, following the expiration of such three Business Day period (or two Business Day period following an amended proposal), the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel), taking into consideration any amendments to this Agreement, the Guarantee and the Financing Commitment Letters proposed by Parent, (x) that the failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law and (y) that such Acquisition Proposal continues to be a Superior Proposal.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify modify, in any manner adverse to Parent and or Merger Sub Sub, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter intointo any letter of intent, any merger agreement, acquisition agreement, or other similar agreement or Contract with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02), (v) with respect fail to publicly reaffirm the Company Recommendation within ten (10) Business Days after Parent so requests in writing after the occurrence of a material event or development, or (vi) resolve or publicly propose to take any action described in the foregoing clauses (i) through (v) (each of the foregoing actions described in clauses (i) through (vi) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board may, if it determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change in response to either (1) a Superior Proposal or (2) any material fact, event, change, development or circumstance not known by the Company Board as of the date hereof (or, if known, the consequences of which were not known nor reasonably foreseeable) and not relating to any Acquisition Proposal (such fact, event, change, development, circumstance or consequences thereof, an “Intervening Event”) and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with promptly following such termination), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable. The Company shall not be entitled to effect an Adverse Recommendation Change pursuant to this Section 6.03(b)(i) or terminate this Agreement pursuant to Section 8.01(h) if it received an Acquisition Proposal attributable to, as a result of, or in connection with its breach of Section 6.02 or Section 6.03 of this Agreement. (ii) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made and (y) no termination of this Agreement pursuant to Section 8.01(h) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board intends to make an Adverse Recommendation Change and/or terminate this Agreement pursuant to Section 8.01(h) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including the terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of three (3) Business Days, and compliance with this Section 6.03(b) with respect to such new notice); (B) unless during such five (5) Business Day period (or three (3) Business Day period following an amended proposal), the Company shall, and shall cause its Representatives to, to the extent requested by Parent, make itself available to negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; (C) unless, prior to the expiration of such five (5) Business Day period (or three (3) Business Day period following an amended proposal), Parent does not make a written proposal to adjust the terms and conditions of this Agreement that the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel) to be at least as favorable to the Company’s stockholders as the Superior Proposal from a financial point of view; and (D) unless, following the expiration of such five (5) Business Day period, (or three (3) Business Day period following an amended proposal), the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), taking into consideration any amendments to this Agreement proposed in writing by Parent, that the failure to make an Adverse Recommendation Change in response to the Superior Proposal and/or cause the Company to terminate this Agreement pursuant to Section 8.01(h) would be inconsistent with its fiduciary duties under Applicable Law. (iii) In the case of an Intervening Event, no Adverse Recommendation Change pursuant to this Section 6.03(b) may be made: (A) until after the fifth (5th) Business Day following written notice from the Company advising Parent that the Company Board intends to take such action and specifying the material facts underlying the determination by the Company Board or a committee thereof that an Intervening Event has occurred, and the reason for the Adverse Recommendation Change, in reasonable detail (a “Notice of Intervening Event”); (B) unless during such five (5) Business Day period, the Company shall, and shall cause its Representatives to, to the extent requested by Parent, make itself available to negotiate with Parent in good faith to enable Parent to amend this Agreement in such a manner that obviates the need for an Adverse Recommendation Change; and (C) unless, prior to the expiration of such five (5) Business Day period, the Company Board determines in good faith, taking into consideration any amendments to this Agreement proposed in writing by Parent (after consultation with a Company Financial Advisor and outside legal counsel), that the failure to effect an Adverse Recommendation Change would be inconsistent with its fiduciary duties under Applicable Law. (c) Nothing contained in Section 6.02 or this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under Applicable Law or any disclosure requirements under Applicable Law, or (iii) making any disclosure that constitutes a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act, which actions shall not constitute or be deemed to constitute an Adverse Recommendation Change; provided, that, solely with respect to (i) and (ii), any such action taken, statement made or disclosure that relates to an Acquisition Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board expressly reaffirms the Company Recommendation in such statement or in connection with such action; and provided further, that, a customary “stop, look and listen” communication by the Company Board or any committee thereof pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not, in and of itself, constitute an Adverse Recommendation Change.

Company Recommendation. (a) Subject to Section 6.03(b6.6(b) and Section 6.03(c6.6(c), neither the Company Board nor any committee thereof shall not (i) (A) fail to make, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify modify, in any manner adverse to Parent and the transactions contemplated by this Agreement, Buyer or Merger Sub LLC, the Company Recommendation, (Bii) approve, endorse, adopt or recommend recommend, or publicly propose to adopt or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (Div) approve, endorse or enter into, or publicly propose to approve, endorse or enter into, or cause or permit the Company or any Subsidiary of the Company to execute, or enter into, any letter of intent, agreement, contract, commitment or agreement in principle (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5(b)) or other arrangement constituting or that would reasonably be expected to lead to an Acquisition Proposal or enter into any agreement, contract or commitment or other arrangement requiring the Company to abandon, terminate, breach or fail to consummate the transactions contemplated by this Agreement, (v) fail to include the Company Recommendation in the Proxy Statement or (vi) resolve or publicly propose to take any action described in the foregoing clauses (Ai) through (Cv) (each of the foregoing actions described in this clause clauses (i) through (vi) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any agreement or Contract (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal). (b) (i) Notwithstanding anything in Section 6.02(a) Subject to the Company’s compliance with Sections 6.5 and Section 6.03(a)6.6, at any time prior to obtaining the Company Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board may, if it determines in good faith (after consultation with a Company Financial Advisor its financial advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under Applicable Lawapplicable law, the Company Board may (A) make an Adverse Recommendation Change and/or in response to a Superior Proposal received after the date hereof or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h8.1(g) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) below, as applicable. (ii) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 6.6(b) may be made and (y) no termination of this Agreement pursuant to Section 8.1(g) may be made, in either case: (A) until after the fifth Business Day following written notice from the Company advising Buyer that the Company Board intends to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(g) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including, if applicable, the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any other relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of three Business Days, and compliance with this 6.6(b) 6.6(b) with respect to such new notice); (B) unless during such five Business Day period (or three Business Day period following an amended proposal), the Company and its Subsidiaries shall, and shall cause their respective Representatives to, to the extent requested by Buyer, negotiate with Buyer and its Representatives in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; and (C) unless, following the expiration of such five Business Day period (or three Business Day period following an amended proposal), the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel), taking into consideration any amendments to this Agreement proposed by Buyer, (x) that the failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable law and (y) that such Acquisition Proposal continues to be a Superior Proposal. (c) Nothing contained in Section 6.5 or this Section 6.6 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board or any committee thereof, after consultation with outside legal counsel, the failure to do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable law or any disclosure requirements under applicable law; provided, however, that the Company and the Company Board may not effect an Adverse Recommendation Change except as permitted by Section 6.6(b)(ii); and (iii) making any disclosure that constitutes a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) promulgated under the Exchange Act, which actions shall not, in and of themselves, constitute or be deemed to constitute an Adverse Recommendation Change.

Company Recommendation. Subject to the terms of Section 4.5(c) hereof, the Board of Directors (aincluding a majority of the "Disinterested Directors" (as such term is defined in Section 1(F) of Article IX of the Company Certificate of Incorporation)) then serving on the Board of Directors) shall (i) recommend that the holders of outstanding shares of Common Stock (A) adopt and approve this Agreement, each of the other Transaction Documents and transactions contemplated hereby and thereby, including the Investment, (B) adopt and approve the Amended and Restated Certificate of Incorporation, and (C) elect to the Board of Directors, effective as of the Closing, the initial Investor Nominees (as such term is defined in the Investor Rights Agreement) set forth in Section 4.3 of the Investor's Disclosure Schedule, in each case in accordance with the applicable provisions of DGCL (collectively, the "Company Recommendation"), and take such lawful action (including the solicitation of proxies) to solicit the adoption, approval and election of the foregoing, and (ii) include the Company Recommendation in the Proxy Statement. Subject to Section 6.03(b) and Section 6.03(c4.5(c), neither the Company Board of Directors nor any committee thereof shall (i) (A) fail to make, withhold, withdraw, qualify, modify, change or amend or modify in any manner adverse to Parent and Merger Sub the Investor (including pursuant to the Proxy Statement or any amendment thereto), the Company Recommendation or the approval by the Board of Directors of this Agreement and the transactions contemplated hereby, including the Investment (a "Company Change in Recommendation"). Notwithstanding anything to the contrary set forth in this Agreement, the Board of Directors may effect a Company Change in Recommendation at any time prior to the Closing, if either: (A) the Board of Directors has received a Competing Proposal (that has not been withdrawn) and such Competing Proposal shall not have resulted from a breach or violation of the terms of Section 4.4(a) or (c), (B) approve, endorse, adopt or recommend an Acquisition the Board of Directors determines in good faith After Consultation that such Competing Proposal is a Superior Proposal, (C) fail at least two business days prior to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of such Company Change in Recommendation, the Company Common Stock within ten Business Days after shall have provided to the Investor a written request by Parent notice (a "Notice of Recommendation Change") of its intention to do so make such Company Change in Recommendation (provided that Parent may only make one such request after commencement which notice shall not be deemed to be, in and of itself, a Company Change in Recommendation), specifying the material terms and conditions of such offerSuperior Proposal, including a copy of such Superior Proposal and identifying the person making such Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material terms of such Superior Proposal shall require the delivery of a new Notice of Recommendation Change and a new two business day period), (D) resolve or publicly propose to take any action described in during the foregoing clauses (A) through (C) (two business day period following the foregoing actions described in this clause (i) being referred to as an “Adverse Investor's receipt of a Notice of Recommendation Change”) or (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, or cause or permit the Company or any Subsidiary shall have given the Investor the opportunity to meet with the Company and its Representatives regarding the terms of possible revisions to the terms of this Agreement, and (E) the Investor shall not, within two business days of the Company to execute or enter intoInvestor's receipt of a Notice of Recommendation Change, any agreement or Contract (other than have made an Acceptable Confidentiality Agreement pursuant to Section 6.02) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining offer that the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach Board of Section 6.02, and the Company Board Directors determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect After Consultation to all of the adjustments be at least as favorable to the terms Company's stockholders as such Superior Proposal; or other than in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent connection with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement it being understood and hereby agreed that the Board of Directors shall be entered into concurrently not effect a Company Change of Recommendation in connection with such terminationa Superior Proposal other than pursuant to the immediately preceding clause (1) of this Section 4.5(c)), subject (A) the Board of Directors determines in good faith After Consultation that the failure to compliance effect a Company Change in Recommendation would be a breach of its fiduciary duties to the Company's stockholders under applicable Legal Requirements and (B) at least three business days prior to such Company Change in Recommendation, the Company shall have provided to the Investor a Notice of Recommendation Change of its intention to make such Company Change in Recommendation (which notice shall not be deemed to be, in and of itself, a Company Change in Recommendation), specifying in sufficient detail the circumstances for such proposed Company Change in Recommendation (it being understood and agreed that any change to such circumstances or any additional circumstances shall require the delivery of a new Notice of Recommendation Change and a new three business day period), and (C) during the three business day period following the Investor's receipt of a Notice of Recommendation Change, the Company shall have given the Investor the opportunity to meet with the Company and its Representatives regarding the terms of paragraph possible revisions to the terms of this Agreement. Notwithstanding anything to the contrary in this Section 4.5, the Company shall not be entitled to enter into any agreement (iiother than a confidentiality agreement as contemplated by Section 4.4(b) below(a "Confidentiality Agreement")), including a letter of intent, with respect to a Superior Proposal unless this Agreement has been or concurrently is validly terminated by its terms pursuant to Section 7.1 and the Investor has received, by wire transfer of immediately available funds, any amounts due to the Investor pursuant to Section 7.3(b).

Company Recommendation. (a) Subject to Section 6.03(b5.03(b) and Section 6.03(c5.03(c), neither the Company Board nor any committee thereof shall (i) (A) fail to make, withdraw, qualify, amend or modify, or publicly propose to withhold, withdraw, qualify, amend or modify modify, in any manner adverse to Parent and Merger Sub Buyer, the Company Recommendation, (Bii) adopt, approve, endorse, adopt or recommend recommend, or publicly propose to adopt, approve, endorse or recommend, an Acquisition Proposal, (Ciii) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock Ordinary Shares within ten five (5) Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer)offer or submit any Acquisition Proposal to a vote of the Company Shareholders, (Div) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse approve or recommend, or publicly propose to approve, endorse approve or recommend, or cause or permit the Company or any Subsidiary of the Company to execute or enter into, any letter of intent, merger agreement, acquisition agreement, or other agreement or Contract with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement or other confidentiality agreement pursuant to Section 6.025.02(c)), (v) with respect fail to issue a press release publicly reaffirming the Company Recommendation within five (5) Business Days after a request by Buyer to do so or fail to include the company Recommendation in the Proxy Statement, or (vi) resolve or publicly propose to take any action described in the foregoing clauses (i) through (v) (each of the foregoing actions described in clauses (i) through (vi) being referred to as an Acquisition Proposal“Adverse Recommendation Change”). (b) (i) Notwithstanding anything in this Agreement to the contrary, including Section 6.02(a) and Section 6.03(a5.03(a), at any time prior to obtaining the Stockholder Company Shareholder Approval, the Company Board or any duly authorized committee thereof may, if the Company receives an Acquisition Proposal that did not result from a material breach of and its Subsidiaries have complied with Section 6.025.02 and this Section 5.03, and the Company Board it determines in good faith (after consultation with a Company Financial Advisor the Company’s financial advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, ) that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below do so would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Lawthe Laws of the Bailiwick of Jersey, the Company Board may (A) make an Adverse Recommendation Change in response to either (1) a Superior Proposal or (2) any fact, event, change, development or circumstance not known by the Company Board as of the date hereof (or, if known, the consequences of which were not known nor reasonably foreseeable) and becomes known by the Company Board after the date hereof and prior to the Scheme Meeting (or, if known on the date hereof, the consequences of which become known or reasonably foreseeable after the date hereof and prior to the Scheme Meeting) and not relating to (x) any Acquisition Proposal or any matter relating thereto or consequence thereof, (y) changes in the market price or trading volume of the shares of Company Ordinary Shares (but excluding the underlying causes of such a change) or (z) the fact that the Company meets or exceeds internal or published projections, budgets, forecasts or estimates for any period (but excluding the underlying causes of such a fact) (such fact, event, change, development, circumstance or consequences thereof, an “Intervening Event”) and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h7.01(i) and authorize the Company to enter into a definitive agreement providing for concerning a transaction that constitutes a Superior Proposal (which agreement shall be entered into substantially concurrently with such termination), subject in each case to compliance with the terms of paragraph (ii) or (iii) below, as applicable. (ii) In the case of a Superior Proposal, (x) no Adverse Recommendation Change pursuant to this Section 5.03(b) may be made and (y) no termination of this Agreement pursuant to Section 7.01(i) may be made: (A) until after the third (3rd) Business Day following written notice from the Company advising Buyer that the Company Board or any duly authorized committee thereof intends to make an Adverse Recommendation Change and/or terminate this Agreement pursuant to Section 7.01(i) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including, if applicable, the material terms and conditions of, and the identity of the Third Party making, such Superior Proposal, and a copy of any relevant transaction documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal, which shall require a new notice period of two (2) Business Days, and compliance with this Section 5.03(b) with respect to such new notice); (B) unless during such three (3) Business Day period (or two (2) Business Day period following an amended proposal), the Company shall, and shall cause its Representatives to, to the extent requested by Buyer, engage in good faith negotiations with Buyer to make such adjustments to the terms and conditions of this Agreement, the Fee Funding Agreements and the Financing Commitment Letters as would enable the Company Board or a duly authorized committee thereof to maintain the Company Recommendation and not make an Adverse Recommendation Change or terminate this Agreement; and (C) unless, prior to the expiration of such three (3) Business Day period (or two (2) Business Day period following an amended proposal), Buyer does not make a written proposal to adjust the terms and conditions of this Agreement, the Fee Funding Agreements and the Financing Commitment Letters that the Company Board or a duly authorized committee thereof determines in good faith (after consultation with the Company’s financial advisor and outside legal counsel) to be at least as favorable to the Company’s Shareholders as the Superior Proposal taking into account all relevant terms and conditions of Buyer’s proposal and the Superior Proposal, including legal, regulatory, financing and closing conditions).

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)Until the Specified Time, neither the Company Board nor any committee thereof shall (i1) (A) fail to make, withhold, withdraw, amend qualify or modify in any a manner adverse to Parent and Merger Sub or Purchaser, or resolve to or publicly propose to withhold, withdraw, qualify, or modify in a manner adverse to Parent or Purchaser, the Company Board Recommendation, (B) approve, endorse, adopt remove the Company Board Recommendation from or recommend an Acquisition Proposalfail to include the Company Board Recommendation in the Schedule 14D-9, (C) fail to recommend against acceptance of make any Third Party public recommendation or public statement in connection with a tender offer or exchange offer for other than a recommendation against such offer or a temporary “stop, look and listen” communication by the shares Company Board pursuant to Rule 14d-9(f) of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer)Exchange Act, or (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve, endorse recommend or recommenddeclare advisable, or publicly propose to approve, endorse recommend or declare advisable, any Acquisition Proposal (any action described in this clause (1) being referred to as a “Company Adverse Change in Recommendation”) or (2) adopt, approve, recommend, submit to stockholders or cause declare advisable, or permit the Company propose to adopt, approve, recommend, submit to stockholders or any Subsidiary of declare advisable, or allow the Company to execute or enter intointo any letter of intent (whether or not binding), term sheet, merger agreement, acquisition agreement, option agreement, agreement in principle or similar agreement providing for any agreement Acquisition Proposal or any Contract with respect to any Acquisition Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate the Contemplated Transactions, or that would otherwise be reasonably likely to materially impede, interfere with or be inconsistent with, the Contemplated Transactions (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02Agreement) with respect to (any such Contract, an “Alternative Acquisition ProposalAgreement”). (b) (i) Notwithstanding anything to the contrary contained in Section 6.02(a) and Section 6.03(a)this Agreement, at any time prior to obtaining the Stockholder Approval, Specified Time: (i) if the Company receives an has received a bona fide written Acquisition Proposal that (which Acquisition Proposal did not result from arise out of a material breach of Section 6.024.4) from any Person that has not been withdrawn and after consultation with outside legal counsel and financial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer, (x) the Company Board may make a Company Adverse Change in Recommendation, and/or (y) the Company may terminate this Agreement to substantially concurrently therewith enter into a Specified Agreement with respect to such Superior Offer and pay the Termination Fee pursuant to Section 7.3, in each case if and only if: (A) the Company Board determines in good faith (faith, after consultation with a Company Financial Advisor and the Company’s outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent counsel and Merger Sub in response to such Acquisition Proposalfinancial advisors, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below such action would be reasonably likely to be inconsistent with its the fiduciary duties under Applicable Law, of the Company Board may (A) make an Adverse Recommendation Change and/or to the Company’s stockholders under applicable Legal Requirements; (B) cause the Company shall have given Parent prior written notice of its intention to consider making a Company Adverse Change in Recommendation or terminate this Agreement pursuant to Section 8.01(h7.1(e) at least four Business Days prior to making any such Company Adverse Change in Recommendation or termination (a “Determination Notice”) (which notice shall not in and authorize of itself constitute a Company Adverse Change in Recommendation or a termination of this Agreement); and (C) (1) the Company shall have made available to Parent the identity of the offeror, a summary of the material terms and conditions of the Acquisition Proposal and copies of all written materials and other documents required by Section 4.4(e), (2) the Company shall have given Parent the four Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make other proposals and shall have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any (provided, that Parent may revise such offer or proposal in response to any revisions to a Superior Offer), (3) after considering any such revised proposal from Parent, including whether such proposal was a written, binding and irrevocable offer, and the results of any such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its financial advisors, the Company Board shall have determined in good faith that such Acquisition Proposal is a Superior Offer and that the failure to make the Company Adverse Change in Recommendation and/or terminate this Agreement pursuant to Section 7.1(e) would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements and (4) if the Company intends to terminate this Agreement to enter into a definitive agreement providing for Specified Agreement, the Company shall have complied with Section 7.1(e). The provisions of this Section 5.1(b)(i) shall also apply to any material amendment (which shall include any revision to the amount, form or mix of consideration the Company’s stockholder would receive) to any Acquisition Proposal and require a transaction that constitutes new Determination Notice, except that, in the case of material amendments to any Acquisition Proposal, the references to four Business Days shall be deemed to be two Business Days; or (ii) other than in connection with a Superior Proposal Offer (which agreement shall be entered into concurrently with such terminationsubject to Section 5.1(b)(i)), subject the Company Board may make a Company Adverse Change in Recommendation in response to compliance a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements; (B) the Company shall have given Parent a Determination Notice at least four Business Days prior to making any such Company Adverse Change in Recommendation; and (C) (1) the Company shall have specified the Change in Circumstance in reasonable detail including a summary of the material facts and circumstances involved in such Change in Circumstance, (2) the Company shall have given Parent the four Business Days after the Determination Notice to propose revisions to the terms of paragraph this Agreement or make other proposals and shall have made available its Representatives to negotiate with Parent with respect to such proposed revisions or other proposal, if any, such that the applicable Change in Circumstance would no longer necessitate a Company Adverse Change in Recommendation under this Section 5.1(b), and (ii3) belowafter considering any such proposal, including whether such proposal was a written, binding and irrevocable offer, and the results of such negotiations and giving effect to the proposals made by Parent, if any, after consultation with outside legal counsel and its independent financial advisors, the Company Board shall have determined in good faith that the failure to make the Company Adverse Change in Recommendation would be inconsistent with the fiduciary duties of the Company Board to the Company’s stockholders under applicable Legal Requirements. The provisions of this Section 5.1(b)(ii) shall also apply to any material change to the facts and circumstances relating to such Change in Circumstance and require a new Determination Notice, except that, in the case of material changes to any facts and circumstances relating to such Change in Circumstance, the references to four Business Days shall be deemed to be two Business Days. (c) The Company shall ensure that any withdrawal or modification of the Company Board Recommendation does not have the effect of causing any corporate takeover law of the State of Delaware or any other state to be applicable to this Agreement or any of the Support Agreements, the Offer, the Merger or any of the other Contemplated Transactions.

Company Recommendation. Except as expressly permitted by Section 5.02(e) (a) Subject to Section 6.03(b) and Section 6.03(cChange in Recommendation Permitted in Certain Circumstances), neither of the Company Board nor any duly authorized committee thereof shall (i) fail to include in the Proxy Statement the Company Recommendation or otherwise fail to make the Company Recommendation; (Aii) change, modify, withhold, qualify or withdraw, or resolve or propose publicly to change, modify, withhold, qualify or withdraw, in each case, in a manner adverse to Parent, the Company Recommendation; (iii) make any recommendation or public announcement in response to a tender or exchange offer commenced by any Person(s), other than an express recommendation (made pursuant to Rule 14e-2(a)(1) under the Exchange Act) that the Company’s stockholders reject such tender or exchange offer, or a temporary “stop-look-listen” communication by the Company Board (made pursuant to Rule 14d-9(f) under the Exchange Act); (iv) fail to makepublicly recommend against a Company Takeover Proposal, withhold, withdraw, amend or modify in any manner adverse fail to Parent and Merger Sub publicly reaffirm the Company Recommendation, (B) approvein each case, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten (10) Business Days after a any written request by Parent to do so so, which is transmitted to the Company subsequent to any public announcement by any Person of a Company Takeover Proposal (provided provided, however, the Company shall not be obligated to publicly recommend against a Company Takeover Proposal or to publicly reaffirm the Company Recommendation upon such a request by Parent more than once in respect of any publicly announced Company Takeover Proposal, it being acknowledged and agreed that Parent may only make one the public announcement of a material modification to such request after commencement Company Takeover Proposal shall be considered a new Company Takeover Proposal for purposes of such offer), (D) resolve or publicly propose to take any action described in the foregoing clauses (A) through (C) (the foregoing actions described in this clause (i) being referred to as an “Adverse Recommendation Change”) iv)); or (iiv) enter into, approve, endorse adopt or recommend, or resolve or propose publicly propose to enter into, approve, endorse adopt or recommend, or cause or permit the any Company Takeover Proposal or any Subsidiary letter of the intent, agreement-in-principle, expression of interest, term sheet, merger agreement, acquisition or business combination agreement, asset sale or transfer agreement, restructuring, reorganization or recapitalization agreement, option agreement, joint venture agreement, partnership agreement, or other Contract contemplating, or providing for, a Company to execute or enter into, any agreement or Contract Takeover Proposal (other than an Acceptable Confidentiality Agreement pursuant to permitted by Section 6.02) with respect to an Acquisition Proposal. (b5.02(c) (Discussions Permitted in Certain Circumstances)) (any one or more of the foregoing actions enumerated in clauses (i) Notwithstanding anything in Section 6.02(a), (ii), (iii) and (iv) of this Section 6.03(a5.02(d) constituting, a “Company Recommendation Change”), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and the Company Board determines in good faith (after consultation with a Company Financial Advisor and outside legal counsel), after giving effect to all of the adjustments to the terms in this Agreement proposed in writing by Parent and Merger Sub in response to such Acquisition Proposal, that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with the terms of paragraph (ii) below.

Company Recommendation. (a) Subject to Section 6.03(b) and Section 6.03(c)Except as set forth herein, neither the Company Board nor any committee thereof shall until the Agreement is terminated pursuant to Section 15.1 (i) (A) fail to makewithdraw, withhold, withdrawqualify or modify, amend or modify in any manner adverse to Parent and Merger Sub the Company Recommendation, (B) approve, endorse, adopt or recommend an Acquisition Proposal, (C) fail to recommend against acceptance of any Third Party tender offer or exchange offer for the shares of the Company Common Stock within ten Business Days after a written request by Parent to do so (provided that Parent may only make one such request after commencement of such offer), (D) resolve or publicly propose to take withdraw, withhold, qualify or modify, in a manner adverse to the Transactions, the approval or recommendation by the Company Board or any such committee to the Company’s Shareholders of this Agreement or the Merger, (ii) approve or recommend or publicly propose to approve or recommend, any Acquisition Proposal (any action described referred to in the foregoing clauses (Ai) through and (C) (the foregoing actions described in this clause (iii) being referred to as an “Adverse Recommendation Change”) or (iiiii) approveenter into any letter of intent, endorse memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or recommendsimilar binding or non-binding agreement (an “Alternative Acquisition Agreement”), or publicly propose any letter of intent or agreement in principle with respect thereto, providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to approvein Section 7.2 entered into in the circumstances referred to in Section 7.2). If the Company receives a written bona fide Acquisition Proposal, endorse or recommendthe Company shall promptly, or cause or permit following a determination by the Company Board based on the written advice of its outside legal counsel and financial advisors that such Acquisition Proposal is a Superior Proposal, notify Parent of such determination. For purposes of this Agreement, a “Superior Proposal” is a bona fide written Acquisition Proposal to acquire all of the equity securities of the Company or any Subsidiary all of the consolidated assets of the Company to execute or enter into, any agreement or Contract and its Subsidiaries (other than an Acceptable Confidentiality Agreement pursuant to Section 6.02A) with respect to an Acquisition Proposal. (b) (i) Notwithstanding anything in Section 6.02(a) and Section 6.03(a), at any time prior to obtaining the Stockholder Approval, if the Company receives an Acquisition Proposal that did not result from a material breach of Section 6.02, and on terms which the Company Board determines in good faith (after consultation with a Company Financial Advisor and determines, based on the written advice of its outside legal counsel)counsel and financial advisors, after giving effect to all of the adjustments be more favorable to the terms in Company Shareholders than the Transactions, taking into account all the financial, regulatory, legal and other aspects of such proposal and this Agreement proposed in writing by Parent Agreement, including the timing and Merger Sub in response to such Acquisition Proposallikelihood of consummating the Transactions, that (i) such Acquisition Proposal constitutes a Superior Proposal and (iiB) the failure to take the actions below would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, which the Company Board may (A) make an Adverse Recommendation Change and/or (B) cause the Company has determined in its good faith judgment after consultations with its outside legal counsel and financial advisors, to terminate this Agreement pursuant to Section 8.01(h) and authorize the Company to enter into a definitive agreement providing for a transaction that constitutes a Superior Proposal (which agreement shall be entered into concurrently with such termination), subject to compliance with reasonably capable of being completed on the terms proposed, taking into account all financial, regulatory, legal, timing, and other aspects of paragraph (ii) belowsuch proposal.