Common use of Company Takeover Proposals Clause in Contracts

Company Takeover Proposals. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, (i) enter into any agreement with respect to any Company Takeover Proposal (as defined in Section 5.02(e) below), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or (ii) furnish to any person any information with respect to a Company Takeover Proposal, except, prior to obtaining each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b)), pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below. (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 Merger, 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. Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, the Company Board receives a Superior Company Proposal (as defined in Section 5.02(e) below), then the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment of the fee therein), approve and recommend such Superior Company Proposal and cause the Company to terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposal. (c) The Company promptly shall advise Acquirer orally and in writing of any Company Takeover Proposal made to the Special Committee or a member thereof, or to a Representative of the Special Committee of which a member of the Special Committee becomes aware, the identity of the person making any such Company Takeover Proposal and the material terms of any such Company Takeover Proposal. The Company shall keep Acquirer informed of the status (including any change to the material terms) of any such Company Takeover Proposal or inquiry. (d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) of the SEC or from making any disclosure to the Company’s stockholders if, in the 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.

Company Takeover Proposals. (a) The If on or after the date of this Agreement and at any time prior to the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, Stockholders Meeting: (i) enter into any agreement with respect to any the Company receives an unsolicited bona fide Takeover Proposal (as defined under circumstances in Section 5.02(ewhich the Company has complied in all material respects with the provisions of Sections 7.5(a) belowand (b), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or (ii) furnish to any person any information with respect to the Company Board, including a Company Takeover Proposal, except, prior to obtaining each majority of the Independent Directors of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b))Board, pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below. (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 Merger, in each case unless the Company Board determines have determined in good faith, after consultation with its outside counsellegal counsel and, with respect to financial matters, its financial advisor, that it (x) failure to consider such Takeover Proposal would be a breach of the standard of conduct applicable to the Company Board and (y) such Takeover Proposal constitutes or is necessary reasonably likely to do so result in a Company Superior Proposal, then, subject to comply compliance with this Section 7.6(a), the Company may 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 the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates). If on or after the date of this Agreement and at any time prior to the Company Stockholders Meeting, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation with its fiduciary duties outside legal counsel and after compliance with its obligations under this Section 7.6(a) and Section 7.6(b), that continued recommendation of the approval of the Company Matters to the Company’s stockholders would be a breach of the standard of conduct applicable to the Company Board as a result of a Company Superior Proposal, the Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus (any such withdrawal, modification or proposal being action described in clause (A) and (B) referred to herein as an a “Company Adverse Recommendation Change”). (b) Upon any determination that a Takeover Proposal constitutes a Company Superior Proposal, the Company shall promptly provide (and in any event within twenty-four (24) hours of such determination) to the Acquiror a written notice (a “Notice of a Company Superior Proposal”) (i) advising the Acquiror that the Company Board has received a Company Superior Proposal, (ii) approve specifying in reasonable detail the material terms and conditions of such Company Superior Proposal and any letter amendment thereof, including the amount per share or other consideration that the stockholders of intentthe Company will receive in connection with the Company Superior Proposal and including a copy of all written materials provided to or by the Company in connection with such Company Superior Proposal (unless previously provided to the Acquiror), agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or and (iii) approve or recommend, or propose publicly to approve or recommend, any identifying the Person making such Company Takeover Superior Proposal. Notwithstanding The Company shall cooperate and negotiate in good faith with the foregoing, if, prior Acquiror (to obtaining the extent the Acquiror desires to negotiate) during the five (5) calendar day period following the Acquiror’s receipt of the Notice of a Company Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Company 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 such that such Company Superior Proposal would cease to constitute a Company Superior Proposal and proceed with a Company Recommendation without a Company Adverse Recommendation Change. If thereafter the Company Stockholder ApprovalBoard, including a majority of the Independent Directors of the Company Board, determines, in its reasonable good faith judgment after consultation with its outside legal counsel and, with respect to financial matters, its financial advisor and after giving effect to any proposed adjustments to the terms of this Agreement that such Company Superior Proposal remains a Company Superior Proposal and that the failure to make such Company Adverse Recommendation Change would be a breach of the standard of conduct applicable to the Company Board, and the Company has complied in all material respects with Section 7.6(a) above and this Section 7.6(b), the Company Board receives may effectuate a Superior Company Proposal (as defined in Section 5.02(e) below), then the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment of the fee therein), approve and recommend such Superior Company Proposal and cause the Company to Adverse Recommendation Change and/or terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposalpursuant to Section 9.1(c)(iv). (c) The Other than as permitted by Section 7.6(a) or Section 7.6(d), neither the Company promptly nor the Company Board shall advise Acquirer orally and in writing of make any Company Takeover Proposal made Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.1(c)(iv). Notwithstanding anything herein to the Special Committee or a member thereofcontrary, or to a Representative no Company Adverse Recommendation Change shall change the approval of the Special Committee of which a member Company Matters or any other approval of the Special Committee becomes awareCompany Board, including in any respect that would have the identity effect of the person making causing any such Company Takeover Proposal and the material terms of any such Company Takeover Proposal. The Company shall keep Acquirer informed of the status (including any change Statute or other similar statute to be applicable to the material terms) of any such Company Takeover Proposal or inquiryTransactions. (d) Other than in connection with a Company Takeover Proposal, nothing in this Agreement shall prohibit or restrict the Company Board from effectuating a Company Adverse Recommendation Change in response to an Intervening Event (a “Company Intervening Event Recommendation Change”) if (A) prior to effecting any such Company Intervening Event Recommendation Change, the Company promptly notifies the Acquiror, in writing, at least five (5) Business Days (the “Company Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Company Adverse Recommendation Change or a Company Intervening Event Recommendation Change), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action, (B) the Company shall, and shall cause its Representatives to, during the Company Intervening Event Notice Period, negotiate with the Acquiror in good faith (to the extent the Acquiror desires to negotiate) to make such adjustments in the terms and conditions of this Agreement that would not permit the Company Board to make a Company Intervening Event Recommendation Change, and (C) the Company Board, including a majority of the Independent Directors of the Company Board, determines, after consulting with its outside legal counsel and, with respect to financial matters, its financial advisor, that the failure to effect such a Company Intervening Event Recommendation Change, after taking into account any adjustments made by the Acquiror during the Company Intervening Event Notice Period, would be a breach of the standard of conduct applicable to the Company Board. (e) Nothing contained in this Section 5.02 Agreement shall be deemed to prohibit the Company from taking and disclosing (i) complying with its disclosure obligations under applicable U.S. federal or state Law with regard to its stockholders a position contemplated by Rule 14d-9 any Takeover Proposal or Rule 14e-2(a(ii) of the SEC or from making any disclosure to the Company’s stockholders if, in the good faith judgment of the Special Committee, after consultation with its outside legal counsel, failure to so disclose the Company determines that such disclosure would be inconsistent with its obligations required under applicable Law; provided, it being understood however, that if any such disclosure constitutes an disclosures (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Adverse Recommendation Change, Acquirer shall have Change unless the rights provided Company Board expressly publicly reaffirms the Company Recommendation (A) in such communication or (B) within three (3) Business Days after being requested in writing to do so by the event of an Adverse Recommendation ChangeAcquiror.

Company Takeover Proposals. (a) The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s 's Representatives to, (i) enter into any agreement with respect to any Company Takeover Proposal (as defined in Section 5.02(e) below)), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or (ii) furnish to any person any information with respect to a Company Takeover Proposal, except, prior to obtaining each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b)), pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below). (b) The Neither the Company Board nor any committee thereof shall not (i) withdraw or modify in a manner adverse to AcquirerParent or Sub, or propose publicly to withdraw or modify, in a manner adverse to AcquirerParent or Sub, the recommendation by the Company Board or any such committee of this Agreement or the Merger, 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. Notwithstanding the foregoing, if, prior to obtaining each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval, the Company Board receives a Superior Company Proposal (as defined in Section 5.02(e)) below), then the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment of the fee therein), approve and recommend such Superior Company Proposal and cause the Company to terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposal. The Company shall, after the Due Diligence Termination Date, at any time requested by Parent, publicly reaffirm its recommendation of this Agreement and the Merger (unless it determines in good faith after consultation with outside counsel, that it cannot do so consistent with its fiduciary duties), and provided that any failure to so reaffirm (whether or not as a result of a determination described in the preceding parenthetical) shall constitute an Adverse Recommendation Change. (c) The Company promptly shall advise Acquirer Parent orally and in writing of any Company Takeover Proposal or any inquiry from a third party made to a director or officer of the Special Committee or a member thereofCompany, or to a Representative of the Special Committee Company of which a member director or officer of the Special Committee Company becomes aware, with respect to the making of a Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the material terms of any such Company Takeover ProposalProposal or inquiry. The Company shall keep Acquirer Parent informed of the status (including any change to the material terms) of any such Company Takeover Proposal or inquiry. (d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) of the SEC or from making any disclosure to the Company’s 's stockholders if, in the good faith judgment of the Special CommitteeCompany Board, 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 Parent shall have the rights provided in the event of an Adverse Recommendation Change. (e) For purposes of this Agreement:

Company Takeover Proposals. (a) The If on or after the date of this Agreement and at any time prior to the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, Stockholders Meeting: (i) enter into any agreement with respect to any the Company receives an unsolicited bona fide Takeover Proposal (as defined under circumstances in Section 5.02(ewhich the Company has complied in all material respects with the provisions of Sections 7.5(a) belowand (b), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or (ii) furnish to any person any information with respect to the Company Board, including a Company Takeover Proposal, except, prior to obtaining each majority of the Independent Directors of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b))Board, pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below. (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 Merger, in each case unless the Company Board determines have determined in good faith, after consultation with its outside legal counsel and, with respect to financial matters, its financial advisor, that (x) failure to consider such Takeover Proposal would be reasonably likely to be a breach of the standard of conduct applicable to the Company Board and (y) such Takeover Proposal constitutes or is reasonably likely to result in a Company Superior Proposal, then, subject to compliance with this Section 7.6(a), the 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 the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates); and (ii) after fulfilling its obligations under the other provisions of this Section 7.6(a) and 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 Company Stockholders Meeting, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation with its outside legal counsel, that it is necessary continued recommendation of the approval of the Company Matters to do so the Company’s stockholders would be reasonably likely to comply with its fiduciary duties be a breach of the standard of conduct applicable to the Company Board as a result of a Company Superior Proposal, the Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus (any such withdrawal, modification or proposal being action described in clause (A) and (B) referred to herein collectively with any Takeover Approval as an a “Company Adverse Recommendation Change”). (b) Upon any determination that a Takeover Proposal constitutes a Company Superior Proposal, the Company shall promptly provide (and in any event within twenty-four (24) hours of such determination) to the Acquiror a written notice (a “Notice of a Company Superior Proposal”) (i) advising the Acquiror that the Company Board has received a Company Superior Proposal, (ii) approve any letter specifying in reasonable detail the material terms and conditions of intentsuch Company Superior Proposal, agreement including the amount per share or other consideration that the stockholders of the Company will receive in principleconnection with the Company Superior Proposal and including a copy of all written materials provided to or by the Company in connection with such Company Superior Proposal (unless previously provided to the Acquiror), acquisition agreement or similar agreement relating to any Company Takeover Proposal or and (iii) approve or recommend, or propose publicly to approve or recommend, any identifying the Person making such Company Takeover Superior Proposal. Notwithstanding The Company shall cooperate and negotiate in good faith with the foregoing, if, prior Acquiror (to obtaining the extent the Acquiror desires to negotiate) during the five (5) calendar day period following the Acquiror’s receipt of the Notice of a Company Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Company 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 the Company Stockholder Approvalto determine that such Company Superior Proposal is no longer a Company Superior Proposal and proceed with a Company Recommendation without a Company Adverse Recommendation Change. If thereafter the Company Board, including a majority of the Independent Directors of the Company Board, determines, in its reasonable good faith judgment after consultation with its outside legal counsel and, with respect to financial matters, its financial advisor and after giving effect to any proposed adjustments to the terms of this Agreement that such Company Superior Proposal remains a Company Superior Proposal and that the failure to make such Company Adverse Recommendation Change would be reasonably likely to be a breach of the standard of conduct applicable to the Company Board, and the Company has complied in all material respects with Section 7.6(a) above, the Company Board receives a Superior Company Proposal (as defined in Section 5.02(e) below), then the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment of the fee therein), approve and recommend such Superior Company Proposal and cause the Company to may terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposalpursuant to Section 9.1(c)(iv). (c) The Other than as permitted by Section 7.6(a) or Section 7.6(d), neither the Company promptly nor the Company Board shall advise Acquirer orally and in writing of make any Company Takeover Proposal made Adverse Recommendation Change. Notwithstanding anything herein to the Special Committee or a member thereofcontrary, or to a Representative no Company Adverse Recommendation Change shall change the approval of the Special Committee of which a member Company Matters or any other approval of the Special Committee becomes awareCompany Board, including in any respect that would have the identity effect of the person making causing any such Company Takeover Proposal and the material terms of any such Company Takeover Proposal. The Company shall keep Acquirer informed of the status (including any change Statute or other similar statute to be applicable to the material terms) of any such Company Takeover Proposal or inquiryTransactions. (d) Other than in connection with a Company Takeover Proposal, nothing in this Agreement shall prohibit or restrict the Company Board from taking any action described in clause (A) of the definition of Company Adverse Recommendation Change in response to an Intervening Event (a “Company Intervening Event Recommendation Change”) if (A) prior to effecting any such Company Intervening Event Recommendation Change, the Company promptly notifies the Acquiror, in writing, at least five (5) Business Days (the “Company Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Company Adverse Recommendation Change or a Company Intervening Event Recommendation Change), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action, (B) the Company shall, and shall cause its Representatives to, during the Company Intervening Event Notice Period, negotiate with the Acquiror in good faith (to the extent the Acquiror desires to negotiate) to make such adjustments in the terms and conditions of this Agreement that would not permit the Company Board to make a Company Intervening Event Recommendation Change, and (C) the Company Board, including a majority of the Independent Directors of the Company Board, determines, after consulting with its outside legal counsel and, with respect to financial matters, its financial advisor, that the failure to effect such a Company Intervening Event Recommendation Change, after taking into account any adjustments made by the Acquiror during the Company Intervening Event Notice Period, would be reasonably likely to be a breach of the standard of conduct applicable to the Company Board. (e) Nothing contained in this Section 5.02 Agreement shall be deemed to prohibit the Company from taking and disclosing (i) complying with its disclosure obligations under applicable U.S. federal or state Law with regard to its stockholders a position contemplated by Rule 14d-9 any Takeover Proposal or Rule 14e-2(a(ii) of the SEC or from making any disclosure to the Company’s stockholders if, in the good faith judgment of the Special Committee, after consultation with its outside legal counsel, failure to so disclose the Company determines that such disclosure would be inconsistent with its obligations required under applicable Law; provided, it being understood however, that if any such disclosure constitutes an disclosures (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Adverse Recommendation Change, Acquirer shall have Change unless the rights provided Company Board expressly publicly reaffirms the Company Recommendation (A) in such communication or (B) within three (3) Business Days after being requested in writing to do so by the event of an Adverse Recommendation ChangeAcquiror.

Company Takeover Proposals. (a) The If on or after the date of this Agreement and at any time prior to the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, Members Meeting: (i) enter into any agreement Company receives a bona fide unsolicited Takeover Proposal (with respect to any which Company Takeover Proposal has complied in all material respects with the provisions of Sections 6.5(a) and (as defined in Section 5.02(eb) below), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or 6.6); (ii) furnish to any person any information with respect to a Company Takeover Proposal, except, prior to obtaining each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b)), pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below. (b) The Company Board Special Committee 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 Merger, in each case unless the Company Board determines have determined in good faith, after consultation with its outside counsellegal counsel and (with respect to financial matters) its outside financial advisor, that it (x) failure to consider such Takeover Proposal would be a breach of the fiduciary duties applicable to the Company Board under applicable Law and (y) such Takeover Proposal constitutes or is necessary reasonably likely to do so result in a Superior Proposal; and (iii) Company gives Buyer prior written notice of the identity of the Person (or group of Persons) making such Takeover Proposal, the terms and conditions of such Takeover Proposal and Company’s intention to comply furnish information to, or participate in discussions or negotiations with, the Person making such Takeover Proposal then, subject to compliance with this Section 6.6(a), Company may: (i) engage in negotiations or discussions with such Person (or group of Persons) who has made the unsolicited, bona fide Takeover Proposal and provide information (including non-public information) in response to a request therefor by such Person (or group of Persons) who has made such Takeover Proposal if Company (A) receives from such Person (or group of Persons) an executed confidentiality agreement with customary terms no less restrictive than the Confidentiality Agreement (but need not include a standstill) and (B) provides Buyer a copy of all such information that has not previously been delivered or made available to Buyer substantially concurrently with delivery to such Person (or group of Persons) (or such Person’s (or group’s) Representatives or Affiliates); and (ii) after fulfilling its obligations under Section 6.6(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 obtaining the Company Requisite Vote, the Company Special Committee shall have determined after consultation with its outside legal counsel and (with respect to financial matters) its outside financial advisor and after compliance with its obligations in Section 6.6 (after having given effect to any amendments, changes or modifications offered by Buyer pursuant to, and in accordance with, Section 6.6(b)), that that continued recommendation of the approval of this Agreement and the Transactions to the Company’s members is reasonably likely to be a breach of the fiduciary duties applicable to the Company Board under applicable Law as a result of a Superior Proposal, Company may (A) withdraw, withhold or qualify (or modify or amend in a manner adverse to Buyer), or publicly propose to withdraw, withhold or qualify (or modify or amend in a manner adverse to Buyer), the Company Board Recommendation and/or (B) make any public statement, filing or release, in connection with the Company Members Meeting, inconsistent with the Company Board Recommendation (any such withdrawal, modification or proposal being action described in clause (A) and (B) referred to herein collectively with any Takeover Approval as an “Adverse Recommendation Change”). (b) Upon any determination that a Takeover Proposal constitutes a Superior Proposal by the Company Board (including any committee thereof), Company shall promptly provide (and in any event within twenty-four (24) hours of such determination) to Buyer a written notice (a “Notice of a Superior Proposal”) (which notice shall not, by itself, constitute an Adverse Recommendation Change): (i) advising Buyer that the Company Board has received a Superior Proposal, (ii) approve specifying in reasonable detail the material terms and conditions of such Superior Proposal and any letter amendment, change or modification thereto, including the amount per unit or other consideration that the members of intentCompany will receive in connection with the Superior Proposal and including a copy of all written materials provided to or by Company in connection with such Superior Proposal (including copies of the current drafts of all agreements, agreement in principleterm sheets, acquisition agreement or similar agreement relating financing commitments and other documentation and correspondence that relate to any Company such Takeover Proposal or Proposal), unless previously provided to Buyer, and (iii) approve identifying the Person (or group of Persons) making such Superior Proposal. Company shall cooperate and negotiate in good faith with Buyer (to the extent Buyer desires to negotiate) during the five (5) Business Day period following Buyer’s receipt of the Notice of a Superior Proposal (it being understood that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new Notice of a Superior Proposal and Company shall be required to comply again with the requirements of this Section 6.6(b), except that such new notice period shall be for two (2) Business Days) to make such adjustments, revisions, changes, modifications, or amendments in the terms and conditions of this Agreement and the Transactions as would enable Company to determine that such Superior Proposal is no longer a Superior Proposal and proceed with a Company Board Recommendation without an Adverse Recommendation Change. If thereafter the Company Special Committee determines, after consultation with its outside legal counsel and (with respect to financial matters) its outside financial advisor and after giving effect to any such proposed adjustments, revisions, changes, modifications, or amendments to the terms and conditions of this Agreement offered by Buyer 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 fiduciary duties applicable to Company Board under applicable Law, and Company has complied in all material respects with Section 6.6(a) above, Section 6.6(b) and Section 6.6(c), Company may terminate this Agreement pursuant to Section 8.1(c)(ii), subject to payment of the Company Termination Fee. (c) Other than as expressly permitted by Section 6.6(a), Section 6.6(b) or Section 6.6(d), neither Company nor the Company Board (or any committee thereof (including the Company Special Committee)) shall make any (i) Adverse Recommendation Change, (ii) approve, adopt or recommend, or propose publicly to approve approve, adopt or recommend, to the Company’s members any Company Takeover Proposal. Notwithstanding , (C) fail to include the foregoingCompany Board Recommendation, ifas applicable, in the Proxy Statement or any filing, amendment or supplement relating to the Proxy Statement, (D) fail to publicly recommend rejection of any tender or exchange offer that constitutes a Takeover Proposal within ten (10) Business Days after such tender or exchange offer is commenced (or such fewer number of days as remain prior to the Company Members Meeting as it may be adjourned or postponed, and in any event prior to the Company Members Meeting), it being understood that the Company Board may refrain from taking a position with respect to a Takeover Proposal that is a tender or exchange offer until the close of business on the tenth (10th) Business Day after the commencement of a tender or exchange offer in connection with such Takeover Proposal (or such fewer number of days as remain prior to the Company Members Meeting as it may be adjourned or postponed, and in any event prior to the Company Members Meeting) without such action being considered a violation of this Section 6.6(c); or (E) except in the event any tender or exchange offer that constitutes a Takeover Proposal, fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days after the written request of Buyer following a Takeover Proposal that has been publicly announced (or, if the Company Members Meeting is scheduled to be held within ten (10) Business Days of such request, within five (5) Business Days of such request and in any event, prior to obtaining the date of the Company Stockholder ApprovalMembers Meeting), or (iii) terminate this Agreement pursuant to Section 8.1(c)(ii). Notwithstanding anything herein to the contrary, no Adverse Recommendation Change shall change the approval of the Transactions, this Agreement or any other approval of the Company Board receives a Superior Company Proposal (as defined in Section 5.02(e) below), then that would have the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment effect of the fee therein), approve and recommend such Superior Company Proposal and cause the Company causing any Takeover Statute or other similar statute to terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposal. (c) The Company promptly shall advise Acquirer orally and in writing of any Company Takeover Proposal made be applicable to the Special Committee or a member thereof, or to a Representative of the Special Committee of which a member of the Special Committee becomes aware, the identity of the person making any such Company Takeover Proposal and the material terms of any such Company Takeover Proposal. The Company shall keep Acquirer informed of the status (including any change to the material terms) of any such Company Takeover Proposal or inquiryTransactions. (d) Nothing contained Other than in this Section 5.02 shall prohibit connection with a Takeover Proposal with respect to Company, the Company from Board shall be permitted to make an Adverse Recommendation Change in response to an Intervening Event (an “Intervening Event Recommendation Change”) if (A) prior to effecting any such Intervening Event Recommendation Change, Company promptly notifies Buyer, in writing, at least five (5) Business Days (the “Intervening Event Notice Period”) before taking such action of its intent to take such action (which notice shall not, by itself, constitute an Adverse Recommendation Change or a Intervening Event Recommendation Change), and disclosing to its stockholders which notice shall include a position contemplated by Rule 14d-9 or Rule 14e-2(a) reasonably detailed description of the SEC or from making any disclosure underlying facts giving rise to, and the reasons for taking, such action, (B) Company shall, and shall cause its Representatives to, during the Intervening Event Notice Period, negotiate with Buyer in good faith (to the Company’s stockholders ifextent Buyer desires to negotiate) to make such adjustments, revisions, changes, modifications, or amendments in the good faith judgment terms and conditions of this Agreement and the Transactions that would not permit the Company Board to make an Intervening Event Recommendation Change, and (C) the Company Special Committee determines, after consulting with its outside legal counsel and (with respect to financial matters) its outside financial advisor, that the failure to effect such an Intervening Event Recommendation Change, after taking into account any adjustments made by Xxxxx during the Intervening Event Notice Period, would be reasonably likely to be a breach of the Special Committee, after consultation with outside counsel, failure fiduciary duties applicable to so disclose would be inconsistent with its obligations the directors of Company under applicable Law. For the avoidance of doubt, it being understood that if any such disclosure constitutes the making of an Adverse Intervening Event Recommendation Change, Acquirer Change shall have the rights provided in the event of constitute an Adverse Recommendation Change. (e) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall be deemed to prohibit Company from (i) complying with its disclosure obligations under applicable U.S. federal or state Law with regard to any Takeover Proposal or (ii) making any disclosure to Company’s members if, after consultation with its outside legal counsel, Company determines that such disclosure would be required under applicable Law; provided, however, that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, which the parties hereto agree shall not in and of itself be deemed to be an Adverse Recommendation Change or give rise to a Buyer termination right pursuant to Section 8.1(d)(ii)) shall be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Company Board Recommendation (A) in such communication or (B) within three (3) Business Days after being requested in writing to do so by Buyer.

Company Takeover Proposals. (a) The If on or after the date of this Agreement and at any time prior to the receipt of the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, Member Approval: (i) enter into any agreement with respect to any the Company receives an unsolicited bona fide Takeover Proposal (as defined under circumstances in Section 5.02(ewhich the Company has complied in all material respects with the provisions of Sections 7.5(a) belowand (b), except (A) in accordance with Section 8.05(b) below (and after compliance with all the procedures set forth therein) or (B) a confidentiality agreement in accordance with this Section 5.02(a) or (ii) furnish to any person any information with respect to the Company Board, including a Company Takeover Proposal, except, prior to obtaining each majority of the Independent Directors of the Company Stockholder Approval and the Unaffiliated Stockholders Approval (as defined in Section 6.01(b))Board, pursuant to a confidentiality agreement and subject to compliance with Section 5.02(c) below. (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 Merger, in each case unless the Company Board determines have determined in good faith, after consultation with its outside legal counsel, that it (x) failure to consider such Takeover Proposal would be a breach of the directors’ fiduciary duties under applicable Law and (y) such Takeover Proposal constitutes or is necessary reasonably likely to do so result in a Company Superior Proposal, then, subject to comply compliance with this Section 7.6(a), the Company may 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 the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates). If on or after the date of this Agreement and at any time prior to the receipt of the Company Member Approval, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation with its outside legal counsel and after compliance with its obligations under this Section 7.6(a) and Section 7.6(b), that continued recommendation of the approval of the Company Matters to the Company’s members would be a breach of the directors’ fiduciary duties under applicable Law as a result of a Company Superior Proposal, the Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Consent Solicitation Statement (any such withdrawal, modification or proposal being action described in clause (A) and (B) referred to herein as an a “Company Adverse Recommendation Change”). (b) Upon any determination that a Takeover Proposal constitutes a Company Superior Proposal, the Company shall promptly provide (and in any event within twenty-four (24) hours of such determination) to the Acquiror a written notice (a “Notice of a Company Superior Proposal”) (i) advising the Acquiror that the Company Board has received a Company Superior Proposal, (ii) approve specifying in reasonable detail the material terms and conditions of such Company Superior Proposal and any letter amendment thereof, including the amount per unit or other consideration that the members of intentthe Company will receive in connection with the Company Superior Proposal and including a copy of all written materials provided to or by the Company in connection with such Company Superior Proposal (unless previously provided to the Acquiror), agreement in principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or and (iii) approve or recommend, or propose publicly to approve or recommend, any identifying the Person making such Company Takeover Superior Proposal. Notwithstanding The Company shall cooperate and negotiate in good faith with the foregoing, if, prior Acquiror (to obtaining the extent the Acquiror desires to negotiate) during the five (5) calendar day period following the Acquiror’s receipt of the Notice of a Company Superior Proposal (it being understood that any amendment to the financial terms or any other material term of such Company 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 such that such Company Superior Proposal would cease to constitute a Company Superior Proposal and proceed with a Company Recommendation without a Company Adverse Recommendation Change. If thereafter the Company Stockholder ApprovalBoard, including a majority of the Independent Directors of the Company Board, determines, in its reasonable good faith judgment after consultation with its outside legal counsel and after giving effect to any proposed adjustments to the terms of this Agreement that such Company Superior Proposal remains a Company Superior Proposal and that the failure to make such Company Adverse Recommendation Change would be a breach of the directors’ fiduciary duties under applicable Law, and the Company has complied in all material respects with Section 7.6(a) above and this Section 7.6(b), the Company Board receives may effectuate a Superior Company Proposal (as defined in Section 5.02(e) below), then the Company Board may, in accordance with Section 8.05(b) below (including the notice provisions and the payment of the fee therein), approve and recommend such Superior Company Proposal and cause the Company to Adverse Recommendation Change and/or terminate this Agreement and concurrently (or substantially contemporaneously) enter into a definitive agreement providing for the implementation of such Superior Company Proposalpursuant to Section 9.1(c)(ii). (c) The Other than as permitted by Section 7.6(a), neither the Company promptly nor the Company Board shall advise Acquirer orally and in writing of make any Company Takeover Proposal made Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.1(c)(ii). Notwithstanding anything herein to the Special Committee or a member thereofcontrary, or to a Representative no Company Adverse Recommendation Change shall change the approval of the Special Committee of which a member Company Matters or any other approval of the Special Committee becomes awareCompany Board, including in any respect that would have the identity effect of the person making causing any such Company Takeover Proposal and the material terms of any such Company Takeover Proposal. The Company shall keep Acquirer informed of the status (including any change Statute or other similar statute to be applicable to the material terms) of any such Company Takeover Proposal or inquiryTransactions. (d) Nothing contained in this Section 5.02 Agreement shall be deemed to prohibit the Company from taking and disclosing (i) complying with its disclosure obligations under applicable U.S. federal or state Law with regard to its stockholders a position contemplated by Rule 14d-9 any Takeover Proposal or Rule 14e-2(a(ii) of the SEC or from making any disclosure to the Company’s stockholders members if, in the good faith judgment of the Special Committee, after consultation with its outside legal counsel, failure to so disclose the Company determines that such disclosure would be inconsistent with its obligations required under applicable Law; provided, it being understood however, that if any such disclosure constitutes an disclosures (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Company Adverse Recommendation Change, Acquirer shall have Change unless the rights provided Company Board expressly publicly reaffirms the Company Recommendation (A) in such communication or (B) within three (3) Business Days after being requested in writing to do so by the event of an Adverse Recommendation ChangeAcquiror.