Common use of Competing Proposal Clause in Contracts

Competing Proposal. (a) From the date of this agreement until the earlier of Stage 2 Completion and the Cut Off Date (Exclusivity Period), the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing its due diligence and other reviews, commencing preparation of definitive documentation and entering into definitive documentation, the Company and its officers, directors, employees, advisers (including legal and financial advisers), agents or other authorised representatives (Related Persons) shall not (directly or indirectly), without the express written consent of the Subscriber (which may be withheld at the Subscriber’s discretion): (1) solicit, invite, encourage or initiate, any offer, proposal, discussion, negotiation, expression of interest or inquiry by any person in relation to, or which would reasonably be expected to encourage or lead to the making of any transaction in respect of a Competing Proposal; or (2) provide any non-public information to any party (other than the Subscriber and its affiliates and representatives) relating to, or which could be reasonably be expected to lead to or encourage, a Competing Proposal. (b) If the Company or any of its Related Persons receives a proposal in connection with an actual, proposed or potential Competing Proposal, or becomes aware of any negotiation, discussion or approach (or any attempt to initiate any negotiation or discussion) relating to a Competing Proposal, the Company and its officers, directors and other representatives shall immediately notify the Subscriber and provide to the Subscriber all material terms of the actual, proposed or potential Competing Proposal (including the identity of the party or parties associated with the Competing Proposal). (c) The Company and each Related Person must not participate in, and must immediately cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date of this agreement with respect to, any Competing Proposal, or any proposal which would reasonably be expected to encourage or lead to the making of an actual, proposed or potential Competing Proposal. (d) Without limiting the foregoing, any violation of the restrictions set out in this clause 9.1 by any Related Person will be deemed to be a breach of this agreement by the Company.

Competing Proposal. (a) From Except for the date of transactions contemplated by this agreement Agreement, until the earlier of Stage 2 Completion and the Cut Off Date (Exclusivity Period)Effective Time or the date of termination of this Agreement in accordance with its terms, the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing shall not, nor shall Company authorize, cause or encourage any of its due diligence and other reviewsdirectors, commencing preparation of definitive documentation and entering into definitive documentation, the Company and its officers, directorsagents, employees, advisers (including legal and consultants, affiliates, shareholders, attorneys, accountants, financial advisers), agents advisors or other authorised representatives (Related Personscollectively, "Representatives") shall not (to, directly or indirectly), without the express written consent of the Subscriber : (which may be withheld at the Subscriber’s discretion): (1i) solicit, inviteencourage, encourage or initiate, engage, respond to, continue or participate in any offernegotiations or discussions with respect to an offer or proposal (whether formal or informal, proposaloral, discussionwritten, negotiationor otherwise) to acquire all or a material portion of Company's stock or assets, expression whether by purchase of interest stock or inquiry by assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (but other than in connection with Company's Series C Preferred financing) (a "Competing Proposal"), (ii) intentionally disclose any heretofore nonpublic information or Intellectual Property Rights of Company, or intentionally afford access to the properties, books or records of Company, to any person in relation to, or which would reasonably be expected to encourage entity concerning Company for the purposes of considering or lead to the making of any transaction in respect of formulating a Competing Proposal; or , (2iii) provide assist, facilitate or encourage any non-public information person or entity to any party (other than the Subscriber and its affiliates and representatives) relating to, or which could be reasonably be expected to lead to or encourage, make a Competing Proposal. , (biv) If the Company agree to, enter into a contract regarding, approve, recommend or endorse any of its Related Persons receives transaction involving a proposal in connection with an actual, proposed or potential Competing Proposal, or becomes (v) authorize or permit any of Company's Representatives to take any action within the scope of the immediately preceding clauses (i) through (iv). If Company or Company's Representatives become aware of a Competing Proposal or if any negotiation, discussion request for nonpublic information or approach (or any attempt to initiate any negotiation or discussion) Intellectual Property Rights relating to Company or for access to the properties, books or records of Company is made by any person or entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, the Company and its officers, directors and other representatives or Company's Representatives shall immediately promptly notify the Subscriber and provide to the Subscriber all material terms Parent of the actual, proposed or potential known material details of such Competing Proposal or request (including the identity of the party person or parties associated entity making such Competing Proposal or request, the terms thereof and the information requested thereby) and shall promptly provide Parent with a copy of any Competing Proposal or request that is made in writing and copies of all written correspondence relating thereto. Thereafter, as long as this Agreement is in effect, Company shall keep Parent apprised on a current basis of the status of any such Competing Proposal). (c) The Proposal and of any modifications to the terms thereof. Company and each Related Person must not participate in, and must Company's Representatives shall immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties other than Parent conducted prior to the date of this agreement heretofore with respect to, to any Competing Proposal, or any proposal which would reasonably be expected to encourage or lead to the making of an actual, proposed or potential Competing Proposal. (d) Without limiting the foregoing, any violation of the restrictions set out in this clause 9.1 by any Related Person will be deemed to be a breach of this agreement by the Company.

Competing Proposal. (a) From and after the date of this agreement Agreement until the earlier Closing or termination of Stage 2 Completion and the Cut Off Date (Exclusivity Period)this Agreement pursuant to Article 7, the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing its due diligence and other reviewsSeller will not, commencing preparation nor will it authorize or permit any of definitive documentation and entering into definitive documentation, the Company and its officers, directors, employeesAffiliates, advisers (including legal and financial advisers)shareholders or employees or any investment banker, agents attorney or other authorised representatives advisor or representative retained by it (Related Personsall of the foregoing collectively being the “Seller Representatives”) shall not (to, directly or indirectly), without the express written consent of the Subscriber (which may be withheld at the Subscriber’s discretion): (1i) solicit, invite, encourage or initiate, seek, entertain, encourage, facilitate, support or induce the making, submission or announcement of any offer, proposal, discussion, negotiationinquiry, expression of interest interest, proposal or inquiry by any person in relation tooffer that constitutes, or which would reasonably be expected to encourage or lead to the making of any transaction in respect of to, a Competing Proposal; or , (2ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information to any party (other than the Subscriber and its affiliates and representatives) relating with respect to, or which could be take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to or encourageto, a an Competing Proposal. , (biii) If the Company agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Competing Proposal, (iv) enter into any letter of intent or any of its Related Persons receives a proposal in connection with an actual, proposed other contract contemplating or potential otherwise relating to any Competing Proposal, or becomes aware (v) submit any Competing Proposal to the vote of any negotiationsecurity holders of the Seller; provided, discussion or approach (or any attempt to initiate any negotiation or discussion) relating to a Competing Proposal, the Company and its officers, directors and other representatives shall immediately notify the Subscriber and provide that nothing contained herein to the Subscriber all material terms contrary shall interfere with or otherwise prohibit the Selling Parties from complying with their obligations under applicable Law with respect to unsolicited tender or exchange offers for the securities of the actual, proposed or potential Competing Proposal (including the identity of the party or parties associated with the Competing Proposal). (c) Seller. The Company and each Related Person must not participate in, and must Seller will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties Persons conducted prior to or on the date of this agreement Agreement with respect toto any Competing Proposal. If any Seller Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Seller is obligated pursuant to this Section 5.20 to cause such Seller Representative not to take, then the Seller shall be deemed for all purposes of this Agreement to have breached this Section 5.20. (b) The Seller shall immediately notify the Buyer orally and in writing after receipt by the Seller (or, to the Knowledge of the Seller, by any of the Seller Representatives), of (i) any Competing Proposal, (ii) any inquiry, expression of interest, proposal or any proposal which offer that constitutes, or would reasonably be expected to encourage lead to, a Competing Proposal, (iii) any other notice that any Person is considering making an Competing Proposal, or lead (iv) any request for nonpublic information relating to the Seller or for access to any of the properties, books or records of the Seller by any Person or Persons other than the Buyer. Such notice shall describe (1) the material terms and conditions of such Competing Proposal, inquiry, expression of interest, proposal, offer, notice or request, and (2) the identity of the Person making any such Competing Proposal, inquiry, expression of an actualinterest, proposed proposal, offer, notice or potential request. The Seller shall keep the Buyer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to the Buyer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Seller shall provide the Buyer with 48 hours prior notice of any meeting of its board of directors at which the board of directors is reasonably expected to discuss any Competing Proposal. (c) If at any time following the date of this Agreement and prior to the receipt of Seller Shareholder Approval (i) the Seller has received an unsolicited bona fide written Competing Proposal, (ii) the board of directors of the Seller determines in good faith, after consultation with its outside financial and legal advisors, that such Competing Proposal constitutes, or would reasonably be expect to lead to, a Superior Proposal and (iii) the board of directors of the Seller determines in good faith, after consultation with its outside legal advisors, that failure to take such action would breach the directors’ fiduciary duties under applicable Laws, then the Seller may (x) furnish non-public information to such third party that has made the bona fide written Competing Proposal and (y) engage in discussions or negotiations with such third party with respect to such bona fide Competing Proposal; provided, that (A) the Seller shall have not violated any of the restriction contained in Section 5.20(a) above, (B) prior to so furnishing such information the Seller receives from the third party an executed confidentiality agreement, which agreement shall not include any provision calling for any exclusive right to negotiate with such Person or having the purported effect of restricting the Seller from satisfying its obligations under this Agreement, and (C) any non-public information concerning the Seller or made available to the Buyer, be provided or made available to the Buyer at substantially the same time that such non-public information is provided to made available to such third party. Prior to taking of any actions referred to in this Section 5.20(c), the Seller shall notify the Buyer orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section, together with a copy of the Competing Proposal submitted by such third party. (d) Without limiting the foregoing, any violation The board of directors of the restrictions set out Seller shall not be entitled to accept a Superior Proposal as provided in Section 5.20(c) unless (i) the Seller has not breached this clause 9.1 by Section or Section 5.19 as it relates to such Superior Proposal, (ii) the Seller has provided written notice (a “Notice of Superior Proposal”) to the Buyer that the Seller intends to take such action, which notice includes a copy of the Superior Proposal that is the Basis of such action (including the identity of the third party making the Superior Proposal and any Related Person will be deemed equity or debt financing materials related thereto, if any), (iii) during the five (5) business day period following the Buyer’s receipt of the Notice of Superior Proposal, the Seller shall, and shall cause its representatives to, negotiate with the Buyer in good faith (to be a breach the extent the Buyer desires to negotiate) to make such adjustments in the terms and conditions of this agreement Agreement so that such Superior Proposal ceases to constitute a Superior Proposal, and (iv) following the end of the five (5) business day period, the board of directors of the Seller shall have determined in good faith, after consultation with its outside financial and legal advisors, taking into account any changes to this Agreement proposed by the CompanyBuyer in response to the Notice of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any amendment to the financial terms or other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Seller shall be required to comply again with the requirements of this Section 5.20.

Competing Proposal. (a) From Except for the date of transactions contemplated by this agreement Agreement, until the earlier of Stage 2 Completion the Effective Time or the date of termination of this Agreement in accordance with its terms, Company shall not take (and the Cut Off Date (Exclusivity Periodsince February 27, 2001, inclusive, Company has not taken), the nor shall Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing authorize, cause or encourage any of its due diligence and other reviewsdirectors, commencing preparation of definitive documentation and entering into definitive documentation, the Company and its officers, directorsagents, employees, consultants, affiliates, attorneys, accountants, financial advisers (including legal and financial advisers), agents or other authorised representatives (Related Personscollectively, "REPRESENTATIVES") shall not (to, directly or indirectly), without the express written consent of the Subscriber : (which may be withheld at the Subscriber’s discretion): (1i) solicit, inviteencourage, encourage or initiate, any offerengage, proposalentertain, discussionreview, negotiation, expression of interest or inquiry by any person in relation respond to, continue or which would reasonably be expected participate in any negotiations or discussions with respect to encourage an offer or lead proposal (whether formal or informal, oral, written, or otherwise) to acquire all or any part of Company's or any of its Subsidiaries' stock or assets, whether by purchase of stock or assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (a "COMPETING PROPOSAL"), (ii) disclose any heretofore nonpublic information, or afford access to the making properties, books or 35 records of any transaction in respect of a Competing Proposal; or (2) provide any non-public information to any party (other than the Subscriber and its affiliates and representatives) relating to, or which could be reasonably be expected to lead to or encourage, a Competing Proposal. (b) If the Company or any of its Related Persons receives Subsidiaries, to any person or entity concerning Company or any of its Subsidiaries for the purposes of considering or formulating a proposal in connection with an actualCompeting Proposal, proposed (iii) assist, cooperate with, facilitate or potential encourage any person or entity to make a Competing Proposal, (iv) agree to, enter into a contract regarding, approve, recommend or endorse any transaction involving a Competing Proposal, or (v) authorize or permit any of Company's Representatives to take any action within the scope of the immediately preceding clauses (i) through (iv). If Company or any of its Subsidiaries or Company's Representatives becomes aware of a Competing Proposal or if any negotiation, discussion or approach (request for nonpublic information relating to Company or any attempt of its Subsidiaries or for access to initiate the properties, books or records of Company or any negotiation of its Subsidiaries is made by any person or discussion) relating to entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, the Company and Company, any of its officers, directors and other representatives Subsidiaries or Company's Representatives shall immediately within 24 hours notify the Subscriber and provide to the Subscriber all material terms Parent of the actual, proposed or potential material details of such Competing Proposal or request (including the identity of the party person or parties associated with the entity making such Competing Proposal). (c, the terms thereof and the information requested thereby) The and shall within 24 hours provide Parent with a copy of any Competing Proposal or request that is made in writing and copies of all correspondence relating thereto. Thereafter Company shall keep Parent fully apprised on a current basis of the status of any such Competing Proposal and each Related Person must not participate inof any modifications to the terms thereof. Company, its Subsidiaries and must Company's Representatives shall immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties other than Parent conducted prior to the date of this agreement heretofore with respect to, to any Competing Proposal, or any proposal which would reasonably be expected to encourage or lead to the making of an actual, proposed or potential Competing Proposal. (d) Without limiting the foregoing, any violation of the restrictions set out in this clause 9.1 by any Related Person will be deemed to be a breach of this agreement by the Company.

Competing Proposal. (a) From the date of this agreement hereof until the earlier of Stage 2 Completion and the Cut Off Effective Date (Exclusivity Period)or the termination of this Agreement in accordance with its terms, the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing shall not, nor shall it permit any of its due diligence and other reviewsAffiliates or Subsidiaries to, commencing preparation nor shall it authorize or permit any of definitive documentation and entering into definitive documentationits or their respective directors, the Company and its officers, directors, employees, advisers advisors, representatives or agents (including legal and financial adviserscollectively, the "Company Representatives"), agents or other authorised representatives (Related Persons) shall not (to directly or indirectly), without the express written consent of the Subscriber (which may be withheld at the Subscriber’s discretion): (1i) solicit, invitefacilitate, initiate, entertain, encourage or take any action to solicit, facilitate, initiate, entertain or encourage, any offerinquiries or communications regarding or the making of any proposal or offer that constitutes or may constitute a Competing Proposal (as defined herein) or (ii) participate or engage in any discussions or negotiations with, proposalor provide any information to or take any other action with the intent to facilitate the efforts of, discussion, negotiation, expression of interest or inquiry by any person concerning any possible Competing Proposal or any inquiry or communication which might reasonably be expected to result in relation toa Competing Proposal. For purposes of this Agreement, the term "Competing Proposal" shall mean any inquiry, proposal or offer from any person (other than Parent, Acquiror or any of their Affiliates) relating to (i) any take-over bid, amalgamation, plan of arrangement, merger, consolidation, reorganization or other direct or indirect business combination, recapitalization, liquidation, winding-up of, or similar transaction, involving the Company or any Material Subsidiary (as defined herein), (ii) the issuance or acquisition of shares of capital stock or other equity securities of the Company or any Material Subsidiary representing 15% or more of the outstanding capital stock or voting power of the Company or such Material Subsidiary, (iii) any tender, exchange offer or other offer or bid that if consummated would result in any person, together with all Affiliates thereof, beneficially owning shares of capital stock or other equity securities of the Company or any Material Subsidiary representing 15% or more of the outstanding capital stock or voting power of the Company or such Material Subsidiary, (iv) the sale, lease, exchange, license (whether exclusive or not), or other disposition of a substantial portion of the Intellectual Property or a substantial portion of the business or other assets of the Company or any Material Subsidiary, or (v) any other transaction, the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the consummation of the transactions contemplated hereby or which would reasonably be expected to encourage diminish significantly the benefits to Parent or lead its Affiliates of the transactions contemplated hereby. The Company shall immediately cease and cause to the making of be terminated, and shall cause its Subsidiaries and all Company Representatives to immediately terminate and cause to be terminated, all existing discussions or negotiations with any transaction in persons conducted heretofore with respect of a Competing Proposal; or (2) provide any non-public information to any party (other than the Subscriber and its affiliates and representatives) relating to, or which that could be reasonably be expected to lead to or encourageto, a Competing Proposal. (b) If the . The Company or any shall promptly notify each Company Representative of its Related Persons receives a proposal in connection with an actual, proposed or potential Competing Proposal, or becomes aware of any negotiation, discussion or approach (or any attempt to initiate any negotiation or discussion) relating to a Competing Proposal, the Company and its officers, directors and other representatives shall immediately notify the Subscriber and provide to the Subscriber all material terms of the actual, proposed or potential Competing Proposal (including the identity of the party or parties associated with the Competing Proposal). (c) The Company and each Related Person must not participate in, and must immediately cease any and all existing activities, discussions or negotiations with any parties conducted prior to the date of obligations under this agreement with respect to, any Competing Proposal, or any proposal which would reasonably be expected to encourage or lead to the making of an actual, proposed or potential Competing Proposal. (d) Section 7.1. Without limiting the foregoing, it is agreed that any violation of the restrictions set out in this clause 9.1 forth above by any Related Person will Affiliate or Subsidiary of the Company or any Company Representative, whether or not such person is purporting to act on behalf of the Company, shall be deemed to be a breach of this agreement Section 7.1(a) by the Company.

Competing Proposal. (a) From Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this agreement Agreement and continuing until 11:59 p.m. New York City time on the earlier date that is (x) thirty (30) days following the date of Stage 2 Completion and this Agreement (the Cut Off “No-Shop Period Start Date”) for any Person or “group” who is not an Excluded Party, or (y) in respect of any Excluded Party, five (5) days after the No-Shop Period Start Date (Exclusivity Periodthe “Cut-Off Date”), the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing its due diligence and other reviews, commencing preparation of definitive documentation and entering into definitive documentationapplicable, the Company Company, its Subsidiaries and its officers, directors, employees, advisers Subsidiaries’ Representatives (including legal and financial advisers)any investment banker, agents attorney or other authorised representatives (Related Personsaccountant retained by any Group Company) shall not have the right (acting under the direction of the Special Committee) to directly or indirectly), without the express written consent of the Subscriber indirectly (which may be withheld at the Subscriber’s discretion): (1i) solicit, invite, encourage or initiate, induce or encourage any offerCompeting Proposal, or facilitate the making, submission or announcement of one or more Competing Proposals from any Person or its Representatives, or encourage, facilitate or assist, any proposal, discussion, negotiation, expression of interest inquiry or inquiry by any person in relation to, or which would reasonably be expected to encourage or lead to the making of any transaction in respect of a Competing Proposal; or (2) provide any non-public information to any party (other than the Subscriber and its affiliates and representatives) relating to, or which offer that could be reasonably be expected to lead to or encourage, a Competing Proposal. (b) If , including by furnishing to any Person or its Representatives any non-public information relating to the Company or any of its Related Persons receives a proposal in connection with an actualSubsidiaries or by affording to any Person or its Representatives access to the business, proposed properties, assets, books, records or potential Competing Proposal, or becomes aware other non-public information of any negotiation, discussion or approach (the Company or any attempt of its Subsidiaries, in each case subject to initiate the entry into, and in accordance with, an Acceptable Confidentiality Agreement; provided, that the Company shall promptly (and in any negotiation event within two (2) Business Days) provide to Parent any information concerning the Company or discussionits Subsidiaries that it has provided to any Person or its Representatives which was not previously provided to Parent, (ii) relating enter into, participate in or engage in discussions or negotiations with any Person or its Representatives with respect to a Competing Proposal or any proposal that could reasonably be expected to lead to a Competing Proposal, and (iii) otherwise cooperate with, assist, participate in or facilitate any Competing Proposal or any proposal that could reasonably be expected to lead to a Competing Proposal. Within forty-eight (48) hours following the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date), the Company and its officers, directors and other representatives shall immediately notify Parent in writing of the Subscriber and provide to the Subscriber all material terms and conditions of the actual, proposed any proposal or potential offer regarding a Competing Proposal (including any amendments or modifications thereof) received from any Person or its Representatives and the identity thereof (including the identity of any Excluded Party). Except as otherwise expressly provided in this Section 6.04, the party Company shall (x) immediately cease any activities permitted by the preceding sentences and any discussions or parties associated negotiations with any Person (other than Parent, Merger Sub or their respective Representatives) that are ongoing as of the No-Shop Period Start Date and that relate, or may reasonably be expected to lead, to a Competing Transaction, and (y) promptly request each Person (other than Parent, Merger Sub or their respective Representatives) that has heretofore executed a standstill, confidentiality or similar agreement in connection with such Person’s consideration of a Competing Transaction to return (or if permitted by the applicable agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable agreement. (b) Immediately from the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date), the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or their Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Proposal, (ii) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information concerning any Group Company to, any person in furtherance of such inquiries or with the intent to induce or obtain such a proposal or offer for a Competing ProposalTransaction, (iii) agree to, approve, endorse, recommend or consummate any Competing Transaction or enter into any Alternative Acquisition Agreement (as defined below), (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes, or (v) authorize or permit any of the Representatives of the Company or any of its Subsidiaries to take any action set forth in clauses (i) – (iv) of this Section 6.04(b); provided, that if, following the receipt of a Superior Proposal or a proposal which is reasonably expected to lead to a Superior Proposal that in either case was made after the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date) and prior to the receipt of the Requisite Company Vote, the Company Board has determined, in its good faith judgment acting at the recommendation of the Special Committee (after consultation with its independent financial advisor and outside legal counsel), that a failure to do so could be inconsistent with its fiduciary duties under applicable Law, the Company may, in response to such proposal, (A) request information from the Person making such proposal for the sole purpose of the Company Board informing itself about the proposal that has been made and the Person that made it, (B) furnish information with respect to the Company to the Person making such Superior Proposal pursuant to an Acceptable Confidentiality Agreement, and (C) participate in negotiations with such party regarding such proposal; provided, further, that as soon as practical (and in any event within twenty-four (24) hours) the Company shall notify Parent in writing of the material terms and conditions of any proposal or offer regarding such proposal (including any amendments or modifications thereof) and the identity thereof (including the identity of any Excluded Party). (c) The Except as expressly permitted in this Section 6.04, neither the Company and each Related Person must not participate inBoard nor any committee thereof shall (i) change, and must immediately cease any and all existing activitieswithhold, discussions withdraw, qualify or negotiations with any parties conducted prior modify, or propose publicly to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent, Merger Sub or the date of this agreement with respect toCompany Recommendation, (ii) fail to include the Company Recommendation in the Proxy Statement, (iii) adopt, approve, determine to be advisable, or recommend, or propose publicly to adopt, approve, determine to be advisable, or recommend, any Competing Proposal, or (iv) fail to recommend against any proposal which would reasonably be expected Competing Transaction subject to encourage or lead Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, (v) fail to publicly reaffirm the making of an actualCompany Recommendation following any Competing Transaction having been publicly made, proposed or potential communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing, or (vi) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Alternative Acquisition Agreement”) related to any Competing ProposalProposal (other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(a) or Section 6.04(b)) (any of the foregoing, a “Change in Company Recommendation”). (d) Without limiting Notwithstanding anything to the foregoingcontrary set forth in Section 6.04(c), any violation if and only if the Company Board determines in good faith acting at the recommendation of the restrictions set out Special Committee (after consultation with its independent financial advisor and outside legal counsel), in response to a Superior Proposal that was made in compliance with this clause 9.1 by Section 6.04 after the date hereof and prior to the receipt of the Requisite Company Vote, that the failure to do so could be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting at the recommendation of the Special Committee) or the Special Committee may (x) make a Change in the Company Recommendation, and (y) authorize the Company to terminate this Agreement in accordance with ‎Section 8.03(c), but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer in all material respects; (ii) after (A) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a proposal or offer that constitutes a Superior Proposal, specifying the material terms and conditions of such proposal or offer, identifying the person making such proposal or offer and indicating that the Company Board intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing Documents, so that such proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing and any Related Person will adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal to which the requirements of this Section 6.04(d) apply and the Company shall be required to deliver a new Notice of Superior Proposal to Parent; provided, further, that with respect to such new Notice of Superior Proposal to Parent, the Superior Proposal Notice Period shall be deemed to be a breach three (3)-Business-Day-period rather than the five (5)-Business-Day-period first described above; and (D) following the end of such five (5)-Business-Day-period or three (3)-Business-Day-period (as applicable), the Company Board shall have determined, in its good faith judgment upon the recommendation of the Special Committee (after consultation with its independent financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Financing Documents proposed by Pxxxxx and Merger Sub in response to the Notice of Superior Proposal or otherwise, that such proposal or offer giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and the failure to take the actions specified in clauses (x) to (y) above could still be inconsistent with its fiduciary duties under applicable Law. (e) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Company Vote is obtained, the Company Board, acting at the recommendation of the Special Committee, or the Special Committee, may make a Change in the Company Recommendation for a reason unrelated to a Competing Proposal if and only if (i) the Company Board determines, acting at the recommendation of the Special Committee, in good faith after consultation with its independent financial advisor and outside legal counsel that, in light of an Intervening Event, failure to make a Change in the Company Recommendation could be inconsistent with its fiduciary duties under applicable Law; (ii) the Company notifies Parent in writing, at least five (5) Business Days in advance, that it intends to effect a Change in the Company Recommendation in light of such Intervening Event, which notice shall specify the nature and circumstances of the Intervening Event in reasonable detail; (iii) after providing such notice and prior to making such Change in the Company Recommendation in connection with such Intervening Event, the Company (A) shall, and shall cause its Representative to, negotiate in good faith with Parent during such five (5)-Business-Day-period (to the extent that Parent desires to negotiate) to make such revisions to the terms of this agreement Agreement and the Financing Documents as would permit the Company Board not to effect a Change in the Company Recommendation in light of such Intervening Event, and (B) shall permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing Documents and any adjustments with respect thereto (to the extent Parent desires to make such presentation); and (iv) the Company Board shall have considered in good faith any changes to this Agreement and the Financing Documents and shall have again determined, acting at the recommendation of the Special Committee, in good faith after consultation with its independent financial advisor and outside legal counsel, taking into account any changes to this Agreement and the Financing Documents proposed by Pxxxxx and Merger Sub in response to the aforementioned notice, that it could continue to be inconsistent with the Company Board’s fiduciary duties under applicable Law not to effect the Change in the Company Recommendation in light of the Intervening Event. (f) Nothing contained in this ‎Section 6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction, including (A) disclosure of factual information regarding the business, financial condition or results of operations of the Company and (B) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, that any such disclosure pursuant to this clause (B) (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or the Special Committee, as applicable, has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the Transactions shall be deemed to be a Change in the Company Recommendation, or (ii) making any “stop-look-and-listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.