Common use of Company Takeover Proposals Clause in Contracts

Company Takeover Proposals. (a) During the Support Period, each Stockholder agrees that it shall not, and shall not authorize any of its respective directors, officers, employees, counsel, advisors, agents, partners or other representatives (“Representatives”) to, directly or indirectly, take any action to (i) solicit, initiate, negotiate, encourage or provide any confidential information to facilitate the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal. (b) During the Support Period, each Stockholder shall immediately cease and cause to be terminated any discussions or negotiations between such Stockholder and any Person (other than Buyer or Merger Sub) that may be ongoing with respect to any Company Takeover Proposal (other than the Merger). (c) Notwithstanding anything to the contrary in this Agreement, (i) each Stockholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a stockholder of the Company and not in any other capacity (including without limitation any capacity as a director of the Company), and the actions of any Representative on behalf of each Stockholder shall be restricted only in connection with such Stockholder’s capacity as a stockholder of the Company shall be restricted, and (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board to take any action or refrain from taking any action in his or her capacity as a member of the Company Board to the extent such action is permitted by the Merger Agreement or required by applicable Law or (B) restrict any Stockholder or Representative in his or her exercise of his or her fiduciary duties as a director of the Company. (d) Notwithstanding anything to the contrary in Section 1.1 or this Section 1.3, if the Company Board has entered into discussions or negotiations with, or provided non-public information to, any person in response to a Company Takeover Proposal by such person in compliance with the provisions of Section 5.02 of the Merger Agreement, each Stockholder may provide information and engage in discussions or negotiations with such person as and to the extent that the Company is permitted to do so pursuant to the terms of the Merger Agreement.

Company Takeover Proposals. (a) During If on or after the Support Perioddate of this Agreement and at any time prior to the Applicable Stockholders Meeting: (i) a Company receives a bona fide unsolicited Takeover Proposal (under circumstances in which such Company has complied in all material respects with the provisions of Sections 7.5(a) and (b)); (ii) the Board of Governors of such Company shall have determined in good faith, each Stockholder agrees after consultation with its outside legal counsel, that it (x) failure to consider such Takeover Proposal would be reasonably likely to be a breach of the standard of conduct applicable to the directors of such Company under applicable Law and (y) such Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal; and (iii) such Company gives the other parties to this Agreement at least two (2) Business Days prior written notice of the identity of the Person making such Takeover Proposal, the terms and conditions of such Takeover Proposal and such Company’s intention to furnish information to, or participate in discussions or negotiations with, the Person making such Takeover Proposal then, subject to compliance with this Section 7.6(a), such Company may: (i) engage in negotiations or discussions with such Person who has made the unsolicited bona fide Takeover Proposal and provide information in response to a request therefor by a Person who has made such Takeover Proposal if such Company (A) receives from such Person an executed confidentiality agreement with customary terms (including a standstill) and (B) provides the other parties to this Agreement a copy of all such information that has not previously been delivered to such parties simultaneously with delivery to such Person (or such Person’s Representatives and Affiliates); and (ii) after fulfilling its obligations under Section 7.6(b) below, adopt, approve or recommend, or publicly propose to adopt, approve or recommend such Takeover Proposal, including entering into an agreement with respect thereto (collectively, a “Takeover Approval”). If on or after the date of this Agreement and at any time prior to the Applicable Stockholders Meeting, the Board of Governors of such Company shall nothave determined, and shall not authorize any by a majority of its respective directorsmembers, officersafter consultation with its outside legal counsel that continued recommendation of the Applicable Matters to such Company’s stockholders would be reasonably likely to be a breach of the standard of conduct applicable to the directors of such Company under applicable Law as a result of a Superior Proposal, employeessuch Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the other parties to this Agreement), counselor publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the other parties to this Agreement), advisorsthe approval, agentsadoption, partners recommendation or other representatives declaration of advisability by the Board of Governors such Company of the Applicable Matters, including the recommendation of the Board of Governors of such Company that the stockholders of such Company approve the Merger (the “RepresentativesApplicable Recommendation”) to, directly or indirectly, and (B) take any action or make any statement, filing or release, in connection with the Applicable Stockholders Meeting or otherwise, inconsistent with the Applicable Recommendation (any action described in clause (A) and (B), with respect to any Company, referred to collectively with any Takeover Approval as an “Adverse Recommendation Change”). (b) Upon any determination that a Takeover Proposal constitutes a Superior Proposal, such Company shall promptly provide (and in any event within 24 hours of such determination) to the other parties to this Agreement a written notice (a “Notice of a Superior Proposal”) (i) solicit, initiate, negotiate, encourage or provide any confidential information advising the other parties to facilitate this Agreement that the submission Board of any Governors of such Company Takeover has received a Superior Proposal, (ii) enter into specifying in reasonable detail the material terms and conditions of such Superior Proposal, including the amount per share or other consideration that the stockholders of such Company will receive in connection with the Superior Proposal and including a copy of all written materials provided to or by such Company in connection with such Superior Proposal (unless previously provided to the other parties to this Agreement) and (iii) identifying the Person making such Superior Proposal. Such Company shall cooperate and negotiate in good faith with each other party to this Agreement (to the extent such party desires to negotiate) during the five (5) calendar day period following such parties’ receipt of the Notice of a Superior Proposal (it being understood that any agreement amendment to the financial terms or any other material term of such Superior Proposal shall require a new notice and a new two (2) calendar day period) to make such adjustments in the terms and conditions of this Agreement as would enable such Company to determine that such Superior Proposal is no longer a Superior Proposal and proceed with the Applicable Recommendation without an Adverse Recommendation Change. If thereafter the Board of Governors of such Company determines, in its reasonable good faith judgment, by a majority of its members, after consultation with its outside legal counsel and after giving effect to any proposed adjustments to the terms of this Agreement that such Superior Proposal remains a Superior Proposal or the failure to make such Adverse Recommendation Change would be reasonably likely to be a breach of the standard of conduct applicable to the directors of such Company under applicable Law, and such Company has complied in all material respects with Section 7.6(a) above, such Company may terminate this Agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish itself pursuant to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal. (b) During the Support Period, each Stockholder shall immediately cease and cause to be terminated any discussions or negotiations between such Stockholder and any Person (other than Buyer or Merger Sub) that may be ongoing with respect to any Company Takeover Proposal (other than the MergerSection 9.1(c)(iv). (c) Other than as permitted by Section 7.6(a), neither such Company nor the Board of Governors of such Company shall make any Adverse Recommendation Change. Notwithstanding anything herein to the contrary in this Agreementcontrary, (i) each Stockholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a stockholder no Adverse Recommendation Change shall change the approval of the Company and not Applicable Matters or any other approval of the Board of Governors of such Company, including in any respect that would have the effect of causing any Takeover Statute or other capacity (including without limitation any capacity as a director of the Company), and the actions of any Representative on behalf of each Stockholder shall similar statute to be restricted only in connection with such Stockholder’s capacity as a stockholder of the Company shall be restricted, and (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board to take any action or refrain from taking any action in his or her capacity as a member of the Company Board applicable to the extent such action is permitted by the Merger Agreement or required by applicable Law or (B) restrict any Stockholder or Representative in his or her exercise of his or her fiduciary duties as a director of the CompanyTransactions. (d) Notwithstanding anything Such Company shall provide the other parties to this Agreement with prompt written notice of any meeting of such Company’s Board of Governors at which such Company’s Board of Governors is reasonably expected to consider any Takeover Proposal (such written notice shall in any event be received by the contrary other parties to this Agreement reasonably in Section 1.1 advance of such meeting). (e) Other than in connection with a Takeover Proposal, nothing in this Agreement shall prohibit or this Section 1.3restrict a Company’s Board of Governors from taking any action described in clause (A) of the definition of Adverse Recommendation Change, if the Company Board has entered into discussions or negotiations withas applicable, or provided non-public information to, any person in response to an Intervening Event (an “Intervening Event Recommendation Change”) if (A) prior to effecting any such Intervening Event Recommendation Change, such Company promptly notifies the other parties to this Agreement, in writing, at least five (5) Business Days (the applicable “Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute an Adverse Recommendation Change or an Intervening Event Recommendation Change), and which notice shall include a Company Takeover Proposal by such person in compliance with the provisions of Section 5.02 reasonably detailed description of the Merger Agreementunderlying facts giving rise to, each Stockholder may provide information and engage in discussions or negotiations with the reasons for taking, such person as and to the extent that the Company is permitted to do so pursuant to the terms of the Merger Agreement.action,

Company Takeover Proposals. Pursuant to the Merger Agreement, the Company was required to, and to cause its Representatives (aas defined below) During to, cease immediately all current discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, a Company Takeover Proposal (as defined below). Further, the Support Period, each Stockholder agrees Company has agreed that it shall will not, and shall will not authorize or permit any of its respective directorssubsidiaries, officersor any officer, employeesdirector, counselemployee, advisorsinvestment banker, agentsfinancial advisor, partners attorney, accountant or other representatives advisor or representative (“collectively, "Representatives”") of the Company or any of its subsidiaries to, directly or indirectly, take any action to (i) directly or indirectly solicit, initiate, negotiate, initiate or encourage or provide any confidential information to facilitate the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal. ; PROVIDED, HOWEVER, that prior to the earlier to occur of acceptance for payment of Shares pursuant to the Offer and approval of the Merger Agreement by the Company's shareholders, the Company may, to the extent that a failure to do so would violate the fiduciary obligations of the Company Board under applicable law, as determined in good faith by a majority of the Disinterested Directors (bas defined below) During based on the Support Periodadvice of outside counsel, each Stockholder shall immediately cease in response to a Superior Company Proposal (as defined below) that was not solicited by the Company or its Representatives and cause that did not otherwise result from a breach or a deemed breach of this provision, and subject to be terminated any compliance with the notice requirements described below, (x) furnish information with respect to the Company to the person making such Superior Company Proposal pursuant to a confidentiality agreement not less restrictive of the other party than the confidentiality agreement between the Company and Parent and (y) participate in discussions or negotiations between regarding such Stockholder and any Person (other than Buyer or Merger Sub) that may be ongoing Superior Company Proposal. "Disinterested Director" means, with respect to any Company Takeover Proposal (other than the Merger). (c) Notwithstanding anything to the contrary in this AgreementProposal, (i) each Stockholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a stockholder of the Company and not in any other capacity (including without limitation any capacity as a director of the Company), and the actions of any Representative on behalf of each Stockholder shall be restricted only in connection with such Stockholder’s capacity as a stockholder of the Company shall be restricted, and (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board to take that is not an affiliate or Representative of the person making such Company Takeover Proposal. Without limiting the foregoing, any action violation of the restrictions set forth in the preceding sentence by any Representative or refrain from taking any action in his or her capacity as a member affiliate of the Company Board or any subsidiary of the Company, whether or not such person is purporting to act on behalf of the extent such action is permitted by Company or any subsidiary of the Company or otherwise, would be deemed to be a breach of the Merger Agreement by the Company. The Merger Agreement provides further that, except as described below, neither the Company, nor the Board nor any committee thereof shall (a) withdraw or required modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or the Purchaser, the approval or recommendation by applicable Law the Company Board or any such committee of the Transaction Agreements, the Offer or the Merger, (b) approve or cause the Company or any subsidiary of the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement (each, an "Acquisition Agreement") relating to any Company Takeover Proposal or (Bc) restrict approve or recommend, or propose publicly to approve or recommend, any Stockholder or Representative in his or her exercise Company Takeover Proposal. Notwithstanding the foregoing, if, prior to the earlier to occur of his or her fiduciary duties as a director acceptance for payment of Shares pursuant to the Offer and approval of the Merger Agreement by the shareholders of the Company. (d) Notwithstanding anything to , the contrary in Section 1.1 or this Section 1.3, if Board receives a Superior Company Proposal which was not solicited by the Company Board has entered into discussions or negotiations with, or provided and which did not otherwise result from a breach of the non-public information to, any person in response to a Company Takeover Proposal by such person in compliance with the solicitation provisions of Section 5.02 of the Merger Agreement, each Stockholder and the Board determines in good faith, based on the advice of outside counsel, that the failure to do so would violate its fiduciary obligations under applicable law, the Board may provide information withdraw or modify its approval or recommendation of the Transaction Agreements, the Offer or the Merger; PROVIDED that such determination shall be made at a time that is after the third business day following the receipt by Parent of written notice advising Parent that the Board is prepared to accept a Superior Company Proposal, specifying the material terms and engage conditions of such Superior Company Proposal and identifying the person making such Superior Company Proposal. In addition, under the Merger Agreement, the Company has agreed to promptly advise Parent, orally and in discussions writing, of any Company Takeover Proposal or negotiations any inquiry with such person as and respect to, or that could reasonably be expected to lead to, any Company Takeover Proposal (including any change to the extent terms of any such Company Takeover Proposal or inquiry) and the identity of the person making any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status of any such Company Takeover Proposal or inquiry (including any change to the terms of any such Company Takeover Proposal or inquiry) and (ii) provide to Parent copies of all correspondence and other written material sent or provided by any third party to the Company, or by the Company to any third party, in connection with any Company Takeover Proposal, as soon as practicable after receipt or delivery thereof. The Merger Agreement provides that the provisions described above will not prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making any disclosure to the Company's shareholders if, in the good faith judgment of the Company Board, based on the advice of outside counsel, failure so to disclose would constitute a violation of applicable law; PROVIDED, HOWEVER, that neither the Company, nor the Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its position with respect to the Transaction Agreements, the Offer or the Merger (unless it is permitted to do so pursuant as described above) or approve or recommend, or propose publicly to the terms of the Merger Agreementapprove or recommend, a Company Takeover Proposal.

Company Takeover Proposals. (a) During the Support Period, each Stockholder agrees that it The Company shall not, and nor shall not it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its respective directors, officers, employees, counsel, advisors, agents, partners or other representatives (“Representatives”) any Company Subsidiary’s Representatives to, directly or indirectly, take any action to indirectly (i) solicit, initiate, negotiate, knowingly encourage or provide any confidential information to knowingly facilitate the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to a Company Takeover Proposal; or (iiiii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action way with any Company Takeover Proposal; provided, however, that at any time prior to facilitate any inquiries or the Share Acceptance, the Company may, in response to a bona fide unsolicited Company Takeover Proposal, and subject to compliance with this Section 4.02: (x) furnish information with respect to the Company to the person making such Company Takeover Proposal (and its representatives) pursuant to a confidentiality agreement that is no less favorable to the Company than the Confidentiality Agreement between Equity Group Investments, L.L.C. and the Company dated July 19, 2004, provided that all of any proposal such information not previously supplied to Acquirer is provided to Acquirer on a substantially concurrent basis; and (y) participate in discussions and negotiations with the person making such Company Takeover Proposal (and its representatives) regarding such Company Takeover Proposal, if (1) the Special Committee determines in good faith, after consultation with outside counsel, that constitutesit is required to do so in order to comply with its fiduciary duties to the Company’s stockholders under applicable law, (2) the Special Committee determines that such Company Takeover Proposal constitutes a Superior Company Proposal, or may a Company Takeover Proposal that could reasonably be expected to lead toresult in a Superior Company Proposal, and (3) the Company provides Acquirer with notice that it intends to engage in any of the actions contemplated in clauses (x) and (y) above, identifying the Company Takeover Proposal and the parties thereto and delivering an accurate description of all material terms of the Company Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.02(a) by any director, officer or employee of the Company or any of its Subsidiaries or any financial advisor, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.02(a) by the Company. (b) The Company Board shall not (i) withdraw or modify in a manner adverse to Acquirer, or propose publicly to withdraw or modify, in a manner adverse to Acquirer, the recommendation by the Company Board of this Agreement or the Offer, in each case unless the Company Board determines in good faith, after consultation with outside counsel, that it is necessary to do so to comply with its fiduciary duties (any such withdrawal, modification or proposal being referred to herein as an “Adverse Recommendation Change“), (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (iii) approve or recommend, or propose publicly to approve or recommend, any Company Takeover Proposal. (b. Notwithstanding the foregoing, if, prior to the Share Acceptance, the Company Board receives a Superior Company Proposal, then the Company Board may, in accordance with Section 7.05(b) During the Support Periodbelow, each Stockholder shall immediately cease approve and recommend such Superior Company Proposal and cause the Company to be terminated any discussions terminate this Agreement and concurrently (or negotiations between substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Stockholder and any Person (other than Buyer or Merger Sub) that may be ongoing with respect to any Superior Company Takeover Proposal (other than the Merger)Proposal. (c) Notwithstanding anything The Company promptly (but in no event later than 24 hours) shall advise Acquirer orally and in writing of any Company Takeover Proposal made to the contrary in this AgreementCompany or its Representatives, (i) each Stockholder is entering into this Agreementthe Special Committee or a member thereof, and agreeing or to become bound hereby, solely in its capacity as a stockholder Representative of the Special Committee, the identity of the person making any such Company and not in any other capacity Takeover Proposal (including without limitation any capacity as a director of the Company)parties in interest thereto, and the actions of any Representative on behalf of each Stockholder shall be restricted only in connection with such Stockholder’s capacity as a stockholder of the Company shall be restricted, and (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board to take any action or refrain from taking any action in his or her capacity as a member of the Company Board to the extent known to the Company or the Special Committee) and the material terms of any such action is permitted by the Merger Agreement or required by applicable Law or (B) restrict any Stockholder or Representative in his or her exercise of his or her fiduciary duties as a director Company Takeover Proposal. The Company shall keep Acquirer informed of the Companystatus (including any change to the material terms) of any such Company Takeover Proposal or inquiry. (d) Notwithstanding anything Nothing contained in this Section 4.02 shall prohibit the Company from taking any action necessary to comply with Rule 14d-9 or Rule 14e-2(a) of the SEC or from making any disclosure to the contrary Company’s stockholders if, in Section 1.1 or this Section 1.3the good faith judgment of the Special Committee, after consultation with outside counsel, failure to so disclose would be inconsistent with its obligations under applicable Law, it being understood that if any such disclosure constitutes an Adverse Recommendation Change, Acquirer shall have the rights provided in the event of an Adverse Recommendation Change. (e) The Company Board has entered into shall (i) immediately cease discussions or negotiations with, or provided non-public information to, with any person in response conducted heretofore with respect to a Company Takeover Proposal by such person in compliance with the provisions of Section 5.02 and existing as of the Merger Agreement, each Stockholder date of this Agreement and (ii) take all steps necessary to ensure that any information that may provide information and engage in discussions or negotiations with such person as and to be exchanged after the extent that the Company is permitted to do so pursuant date hereof shall be subject to the terms and conditions of the Merger this Agreement.

Company Takeover Proposals. (a) During Except as permitted by Section 6.4(b), during the Support Period, each Stockholder agrees that it Interim Period the Company shall not, and the Company shall cause the Company Subsidiaries and its and their officers and directors or equivalents not authorize any of to, and the Company shall direct its respective directors, officers, employees, counsel, advisors, agents, partners or other representatives (“Representatives”) Representatives not to, directly or indirectlyindirectly through any Person, take any action to (i) solicit, initiate, negotiate, knowingly facilitate or knowingly encourage or provide any confidential information to facilitate the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations inquiries regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes, constitutes or may would reasonably be expected to lead to, a Takeover Proposal (“Inquiry”), (ii) continue, enter into or participate in any discussions with any Person regarding any Takeover Proposal or furnish any non-public information in connection with, or knowingly facilitate in any way any effort in furtherance of any Takeover Proposal or Inquiry (other than to state that the Company is not permitted to have discussions) or (iii) approve or recommend a Takeover Proposal, or execute or enter into any Contract (including any letter of intent, term sheet, memorandum of understanding or similar document) with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 6.4(b)). (b) Notwithstanding Section 6.4(a), following the receipt by the Company of an unsolicited written Takeover Proposal, (i) the Company Board shall be permitted to participate in discussions regarding such Takeover Proposal to clarify the terms of such Takeover Proposal and (ii) if the Company Board determines in good faith after consultation with outside legal counsel and financial advisors that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, then the Company may, in response to such Takeover Proposal, (x) furnish non-public information with respect to the Company and any of the Company Subsidiaries to the Person who has made such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement, so long as any non-public information provided under this clause (x) has previously been provided to Parent or is provided to Parent as soon as practicable (and in any event within twenty-four (24) hours) after the time such non-public information is furnished to such Person, and (y) participate in discussions and negotiations regarding such Takeover Proposal. (bc) During From and after the Support Perioddate of this Agreement, the Company, orally and in writing, shall promptly advise Parent of (i) the receipt of any Takeover Proposal, specifying the parties involved and the material terms and conditions thereof, and (ii) any modifications to the financial or other material terms and conditions of such Takeover Proposal, in each Stockholder case, with a copy thereof if in writing, within twenty-four (24) hours after the Company’s receipt thereof. (d) Except as set forth in Section 6.4(e) and Section 6.4(f), the Company Board shall immediately cease and cause not (i) withdraw, qualify, modify or amend the Company Recommendation in any manner adverse to be terminated any discussions Parent, (ii) approve, endorse or negotiations between such Stockholder and any Person recommend a Takeover Proposal or (other than Buyer iii) approve, recommend or Merger Sub) that may be ongoing with respect allow the Company to any Company enter into a Contract relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (any of the Mergerforegoing, an “Adverse Recommendation Change”). (ce) Notwithstanding anything to the contrary in this Agreement, at any time before the date the Company Stockholder Approval is obtained, the Company Board may (i) each Stockholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a stockholder of make an Adverse Recommendation Change if (x) the Company and not in any other capacity (including without limitation any capacity as Board has received a director of the Company), and the actions of any Representative on behalf of each Stockholder shall be restricted only in connection with such Stockholder’s capacity as a stockholder of bona fide Takeover Proposal that the Company shall be restrictedBoard has concluded in good faith, following consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, and (y) determines in good faith, following consultation with its outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ duties under applicable Law, and in such case the Company may terminate this Agreement pursuant to Section 8.1(c)(ii) and enter into a Contract with respect to such Superior Proposal; provided that the applicable Takeover Proposal was not the result of a violation of Section 6.4(a), or (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board to take any action or refrain from taking any action in his or her capacity make an Adverse Recommendation Change as a member result of the Company Board to the extent such action is permitted by the Merger Agreement or required by applicable Law or (B) restrict any Stockholder or Representative in his or her exercise of his or her fiduciary duties as a director of the Company. (d) Notwithstanding anything to the contrary in Section 1.1 or this Section 1.3an Intervening Event, if the Company Board determines in good faith, following consultation with its outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 6.4(e) or terminate this Agreement pursuant to Section 8.1(c)(ii) unless (i) the Company has entered into discussions or negotiations withprovided a written notice (a “Notice of Superior Proposal/Intervening Event”) to Parent that the Company intends to take such action, or provided non-public specifying in reasonable detail the reasons therefor and, (A) in the case of a Superior Proposal, describing the material terms and conditions of, and attaching to such notice the most recent draft of, the Superior Proposal that is the basis of such action, and (B) in the case of an Intervening Event, the material facts and circumstances (based on information reasonably available) related to such Intervening Event, (ii) during the three (3) Business Day period following Parent’s receipt of the Notice of Superior Proposal/Intervening Event, the Company shall, and shall direct its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such action is no longer necessary, and (iii) following the end of the three (3) Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel, taking into account any person changes to this Agreement proposed in writing by Parent in response to a Company the Notice of Superior Proposal/Intervening Event or otherwise, that the failure to make an Adverse Recommendation Change pursuant to Section 6.4(e) or terminate this Agreement pursuant to Section 8.1(c)(ii) would still be inconsistent with the directors’ duties under applicable Law, subject to the payment obligations set forth in Section 8.3; provided that any amendment to the financial terms or any other material amendment of such Takeover Proposal by such person in compliance shall require a new Notice of Superior Proposal/Intervening Event and the Company shall be required to comply again with the provisions requirements of this Section 5.02 6.4(f) (except that in the case of such an amendment, the references to three (3) Business Days in this Section 6.4(f) shall instead be two (2) Business Days). (g) Nothing contained in this Agreement shall prohibit the Company from complying with Rules 14a-9, 14d-9, 14e-2 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Merger AgreementCompany Board, each Stockholder may provide information and engage in discussions or negotiations after consultation with such person as and to its outside legal counsel, the extent that the Company is permitted failure to do so pursuant would reasonably be expected to be inconsistent with the terms directors’ duties under applicable Law or such disclosure is otherwise required under applicable Law. (h) For purposes of the Merger this Agreement.:

Company Takeover Proposals. (a) During the Support Period, each Stockholder agrees that it The Stockholders shall not, and they shall cause their Representatives not authorize any of its respective directors, officers, employees, counsel, advisors, agents, partners or other representatives (“Representatives”) to, directly or indirectlyindirectly initiate, take any action to (i) solicit, initiate, negotiate, or knowingly encourage any inquiries or provide any confidential information to facilitate the submission making or implementation of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingconcerning, or furnish to provide any person any confidential information with respect or data to, or take have any other action discussions with, any Person relating to a Company Takeover Proposal, or otherwise facilitate any inquiries effort or attempt to make or implement a Company Takeover Proposal. Notwithstanding the foregoing, in connection with any Company Takeover Proposal, the Stockholders may provide information and engage in discussions with the Person making the Company Takeover Proposal to the same extent as the Company is permitted to engage in discussions and provide information pursuant to Section 6.1(a) of the Merger Agreement; provided, that a copy of any proposal that constitutesinformation provided by the Stockholders with respect to such Company Takeover Proposal is simultaneously provided to Parent if it has not previously been furnished or made available to Parent. (a) The Stockholders will immediately cease and cause to be terminated any existing activities, discussions or may reasonably be expected negotiations with any parties conducted heretofore with respect to lead to, any Company Takeover Proposal. (b) During The Stockholders agree that they will promptly inform their and their Affiliates’ Representatives of the Support Periodobligations undertaken in this Article 4. (c) Notwithstanding the foregoing, each Stockholder shall immediately cease and cause to be terminated individual who is both (i) a Representative of any discussions or negotiations between such Stockholder and (ii) a Representative of the Company shall be entitled to take any Person (other than Buyer or Merger Sub) that may be ongoing action with respect to any Company Takeover Proposal (other than the Merger). (c) Notwithstanding anything to the contrary in this Agreement, (i) each Stockholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a stockholder Representative of the Company and not in any other capacity (including without limitation any capacity as a director of the Company), and the actions of any Representative on behalf of each Stockholder shall that it would otherwise be restricted only in connection with such Stockholder’s capacity as a stockholder of the Company shall be restricted, and (ii) nothing in this Agreement will be deemed to (A) require any Stockholder or Representative who is also a member of the Company Board permitted to take any action or refrain from taking any action in his or her capacity as a member the absence of the Company Board to the extent such action is permitted by the Merger Agreement or required by applicable Law or (B) restrict any Stockholder or Representative in his or her exercise of his or her fiduciary duties as a director of the Company. (d) Notwithstanding anything to the contrary in Section 1.1 or this Section 1.3, if the Company Board has entered into discussions or negotiations with, or provided non-public information to, any person in response to a Company Takeover Proposal by such person in compliance with the provisions of Section 5.02 of the Merger Agreement, each Stockholder may provide information and engage in discussions or negotiations with such person as and to the extent that the Company is permitted to do so pursuant to the terms of the Merger Agreement4.4.