Common use of Competing Proposals Clause in Contracts

Competing Proposals. (a) The Company and Parent each agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may be, or any of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”). (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (c) Each of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect to a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders of the Company or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing Proposal.

Competing Proposals. (a) The Company Except as contemplated by this Agreement, the Partnership will not, and Parent each agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall and (ii) each of them shall direct and use its best efforts to it will cause its and its Subsidiaries’ employees, agents and Representatives (including the Conflicts Committee) not to, directly or indirectly, initiate, (i) solicit or encourage any inquiries or the making submission of any proposal Competing Proposal, or offer (ii) participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, any Competing Proposal. Subject to a mergerthe limitations in Section 7.7(b), reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving nothing contained in this Agreement will prohibit the Company or Parent, as the case may be, or any of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person Partnership (or the stockholders or other equity owners of such personConflicts Committee) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (from furnishing any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may beinformation to, or entering into or participating in discussions or negotiations with, any Person that makes an affiliate thereof) being hereinafter referred to as unsolicited written Competing Proposal which did not result from a breach of this Section 7.7 (a “Receiving Party”) if the Board or the Conflicts Committee determines, after consultation with its outside legal advisors and financial consultants, that such Competing Proposal”)Proposal could possibly lead to a Change in Recommendation. (b) The Company and Parent each further agrees that Partnership (including the Conflicts Committee) will not provide any Receiving Party with any non-public information or data pertaining to the Partnership or any of its assets (the “Non-Public Information”) unless (i) neither it, nor any the Partnership has complied with all of its Subsidiariesobligations under this Section 7.7, nor any (ii) the Board or the Conflicts Committee determines, after consultation with its outside legal advisors and financial consultants that the provision of its officers and directors, nor any officers or directors of its Subsidiaries shallsuch Non-Public Information to the Receiving Party could possibly lead to a Change in Recommendation, and (iiiii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, Partnership has first (A) providing information in response required the Receiving Party to execute and deliver a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained deemed reasonable in good faith by the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A)Conflicts Committee, (B) or furnished a copy of such confidentiality agreement to the NGP Parties and (C) above, notified the Board of Directors NGP Parties of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that identity of such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior ProposalReceiving Party. The Company and Parent each agrees that it Partnership will immediately, and will request that its Representatives, cease and cause promptly provide or make available to be terminated the NGP Parties any existing activities, discussions non-public information concerning the Partnership or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, assets that is provided or made available to any Receiving Party pursuant to this Section 7.7 which was not previously provided or made available to the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiationsNGP Parties. (c) Each The Parties acknowledge that, while the Conflicts Committee has been delegated the authority to effect a Change in Recommendation and to terminate this Agreement pursuant to Section 10.1(e), the Conflicts Committee has not been delegated the authority to approve execution or delivery by the Partnership of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect to agreement constituting a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders of the Company or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing Proposal.

Competing Proposals. (a) The Company Except as otherwise provided in this Agreement, from the date of this Agreement until the Closing or, if earlier, the termination of this Agreement in accordance with its terms, Seller shall not, and Parent each agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries Seller shall and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may be, or any of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”). (b) The Company and Parent each further agrees that (i) neither itsolicit, nor discuss, knowingly encourage or facilitate, negotiate or accept any of proposals, offers or inquiries from, or enter into any agreement, including any non-disclosure agreement, with, any Person other than Buyer (or its SubsidiariesAffiliates) relating to or in connection with, nor or that could reasonably be expected to lead to, any of its officers and directors, nor any officers Competing Proposal or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly have any discussions or indirectly, engage in any negotiations concerning, with or provide any confidential information or data toto any Person relating to a Competing Proposal, or have engage in any negotiations concerning a Competing Proposal, or otherwise cooperate with or assist or participate in, or facilitate such inquiries, proposals, discussions with, or negotiations or any person relating effort or attempt to make or effectuate a Competing Proposal; provided, howeverthat, that nothing set forth in this Section 6.04 notwithstanding the foregoing, the Seller shall prevent either the Company be permitted to grant a waiver of or Parent terminate any “standstill” or their respective Boards similar obligation of Directors from (i) complying any Third Party with its disclosure obligations pursuant respect to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) Seller or 14(e) any of the Exchange Act with regard its Subsidiaries to allow such Third Party to submit a Competing Proposal; . In furtherance of the foregoing, Seller will not disclose, or cause to be disclosed, any non-public information relating to Seller or the Devices & Services Business or afford access to the properties, books, records or representatives of Seller or the Devices & Services Business, to any Person (other than Buyer and its Representatives) concerning or in connection with a Competing Proposal. (iib) Notwithstanding anything to the contrary in this Agreement, at any time prior toto the date that the Requisite Shareholder Approval is obtained at the Extraordinary General Meeting, but not after, in the time this Agreement is adopted at event that the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicableSeller receives a bona fide unsolicited Competing Proposal from any Person, (Ai) providing the Seller and its Representatives may contact such Person solely to clarify the terms and conditions thereof and (ii) the Seller and its board of directors and its Representatives may engage in negotiations or substantive discussions with, and furnish any information in response to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to access to, any Person making such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and its Representatives or potential sources of financing if the terms Seller’s board of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its outside legal and financial advisoradvisors) that such Competing Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; provided that (x) prior to furnishing any material nonpublic information concerning the Seller and its Subsidiaries, the Seller receives from such Person, to the extent such Person is not already subject to a confidentiality agreement with the Seller the terms of which are not materially less favorable to the Seller than those contained in the Confidentiality Agreement, an executed confidentiality agreement containing confidentiality terms that are not materially less favorable to the Seller than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not restrict the making of Competing Proposals (and related communications) to the Seller or the Seller’s board of directors); provided further Seller and its Representatives shall withhold from such Person such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any pricing or other matters that are highly sensitive or competitive in nature if accepted, is the exchange of such information could reasonably be likely to be consummatedharmful to the operation of the Devices & Services Business in any material respect and (y) any such material nonpublic information so furnished shall be promptly made available to Buyer to the extent it was not previously made available to Buyer or its Representatives. Seller agrees that it and its Subsidiaries will not enter into any confidentiality agreement or other agreement with any Person which prohibits Seller from providing any information to Buyer in accordance with this Section 5.14(b). (c) Except as otherwise provided in this Agreement, taking into account the board of directors of the Seller shall not (i) (A) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Buyer, the Seller Recommendation, (B) approve or recommend, or propose publicly to recommend, to the Seller’s shareholders any Competing Proposal, (C) fail to include the Seller Recommendation in the initial press release announcing the execution of this Agreement and the transactions contemplated by this Agreement or any materials furnished or mailed to Seller’s shareholders with respect to the Extraordinary General Meeting or (D) fail to recommend against acceptance of a tender or exchange offer for any outstanding shares of Seller that constitutes a Competing Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve or recommend, or allow the Seller or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, or definitive purchase or similar agreement with respect to any Competing Proposal (other than a confidentiality agreement referred to in Section 5.14(b)). Notwithstanding anything in this Agreement to the contrary, at any time prior to receipt of the Requisite Shareholder Approval, but not after, the board of directors of the Seller may make an Adverse Recommendation Change if, but only if, the Seller has received a bona fide unsolicited Competing Proposal that the board of directors of the Seller has determined in good faith (after consultation with its legal counsel and financial advisors) constitutes a Superior Proposal; provided, however, that no Adverse Recommendation Change may be made until after the third (3rd) Business Day following Buyer’s receipt of a written notice from the Seller advising Buyer that the board of directors of the Seller intends to make an Adverse Recommendation Change (a “Notice of Adverse Recommendation”) and specifying the reasons therefor, including, the terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal) and furnishing to Parent a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and all legalother material documents. During such three (3) Business Day period, Seller shall negotiate, and shall have caused its financial and regulatory aspects legal advisors to negotiate, with Buyer in good faith (to the extent Buyer desires to negotiate) to make such adjustments in the terms and conditions of the proposal and the person making this Agreement so that such proposal, and, if consummated, would Competing Proposal ceases to constitute a Superior Proposal. The Company Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Adverse Recommendation Change and Parent each agrees the Seller shall be required to comply again with the requirements of this Section 5.14(c); provided, however, that it will immediatelyreferences to the foregoing three (3) Business Day period shall be deemed to be references to a two (2) Business Day period In determining whether to make an Adverse Recommendation Change or in determining whether a Competing Proposal constitutes a Superior Proposal, the board of directors of the Seller shall take into account any changes to the terms of this Agreement timely proposed by Buyer in response to a Notice of Adverse Recommendation or otherwise. Notwithstanding any Adverse Recommendation Change, unless earlier terminated under Section 7.1, the transactions contemplated under this Agreement shall be submitted to Seller’s shareholders at the Extraordinary General Meeting for the purpose of adopting this Agreement and nothing contained herein shall be deemed to relieve Seller of such obligation. (d) Seller shall promptly, and will request that its Representativesin any event within two (2) Business Days, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to advise Buyer of any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, such Competing Proposal and thereafter the identity of the Person making any such Competing Proposal. Seller shall keep Parent or the Company, as the case may be, informed, Buyer reasonably informed on a reasonably current basis (but in any case within 12 hours), on of the status and material details (including any material change to the terms thereof) of any such proposals or offers Competing Proposal and any discussions and negotiations concerning the status of any such discussions or negotiationsmaterial terms and conditions thereof. (ce) Each Nothing in this Agreement shall restrict the Seller or the board of directors of the Company and Parent Seller from taking or disclosing a position to comply with applicable Law (it being agreed that a factually accurate public statement by the “Subject Party”) agrees Seller that (i) during solely describes the five business day period prior to its taking any action referred to in clause (ii)(C) Seller’s receipt of the proviso in Section 6.04(b) with respect to a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms main contents of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues and the operation of this Agreement with respect thereto shall not be deemed to be an Adverse Recommendation Change or give rise to a Superior Proposal in light of any revisions Buyer termination right pursuant to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c7.1(g) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as such statement explicitly reaffirms the party making such change in recommendation provides notice to the other party prior to making such changeSeller Recommendation). (df) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders of the Company or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing Proposal.:

Competing Proposals. (a) The Company and Parent each agrees that Subject to the remainder of this Section 6.9, none of the Seller Parties or any of their respective subsidiaries shall, nor shall (directly or indirectly) any Seller Party authorize any of its or its subsidiaries’ officers, directors, Representatives or other intermediaries or subsidiaries to: (i) neither itsolicit, nor initiate or knowingly facilitate (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 6.9 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of this Section 6.9) the submission of inquiries, proposals or offers from any of Person (other than Purchaser and its Subsidiariesaffiliates) relating to any Competing Proposal, nor or agree to or recommend any of its officers and directors, nor any officers or directors of its Subsidiaries shall and Competing Proposal; (ii) each of them shall direct and use its best efforts enter into any agreement (x) to cause its and its Subsidiaries’ employeesconsummate any Competing Proposal, agents and Representatives not to(y) to approve any Competing Proposal or (z) requiring it to abandon, directly terminate or indirectly, initiate, solicit fail to consummate the Transactions; (iii) enter into or encourage participate in any inquiries discussions or the making of negotiations in connection with any proposal Competing Proposal or offer inquiry with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may beany Competing Proposal, or furnish any of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”). (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant respect to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing information Servicing Rights in response to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions connection with any person who has made an unsolicited bona fide written Competing Proposal; or (Civ) recommending such a Competing Proposal agree to the stockholders resolve to take, or take, any of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in actions prohibited by clause (Ai), (Bii) or (Ciii) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Lawsentence. Each of Seller and Seller Parent shall immediately cease, and (y) in each case referred cause its respective Representatives and other intermediaries to in clause (B) or (C) aboveimmediately cease, the Company or Parent, as the case may be, is in compliance with this Section 6.04 any and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Competing Proposal and shall immediately terminate access by all such parties and their Representatives to any online data room or portions thereof to the extent pertaining to the Servicing Rights. For purposes of this Section 6.9, the term “Person” includes any “group” as defined in Section 13(d) of the Exchange Act. Notwithstanding the foregoing, Seller and Seller Parent may, following the receipt of a Competing Proposal. The Company , contact the Person that has made such Competing Proposal to (i) clarify and understand the terms and conditions thereof solely to facilitate the Seller Parent each agrees that it will take the necessary steps Board’s determination of whether such Competing Proposal constitutes or would reasonably be expected to promptly lead to, a Superior Proposal, and (ii) inform its Representatives such Person of the obligations undertaken existence of the provisions of this Section 6.9. Notwithstanding the foregoing or any other provision in this Agreement, nothing in this Agreement shall be deemed to prohibit or otherwise limit the ability of Seller Parent, its subsidiaries or their Representatives or other intermediaries from taking any action prohibited by this Section 6.9(a) or taking any other action with respect to any transaction that does not constitute or relate to a Competing Proposal. (b) Notwithstanding anything to the contrary in this Section 6.04 6.9, Seller and under Seller Parent may, directly or indirectly, prior to the receipt of the Stockholder Approval, (i) engage in negotiations or discussions with any Person (and its Representatives) that has made an unsolicited written Competing Proposal not resulting from or arising out of a material breach of Section 6.9(a), and/or (ii) furnish to such Person information relating to the Servicing Rights pursuant to an Acceptable Confidentiality Agreements. The Company and Parent each agrees Agreement (provided that it will notify to the other extent any nonpublic information pertaining to the Servicing Rights that has not been made available to Purchaser is made available to such Person, make available or furnish such nonpublic information to Purchaser promptly (but and in any case event within 12 24 hours) if any following the time it is provided to such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicatingPerson), in connection with the case of each of clauses (i) or (ii), if, and only if, prior to taking such noticeparticular action, the name of Seller Parent Board has determined in good faith after consultation with its financial advisors and outside legal counsel that such person and the material terms and conditions of any proposals Competing Proposal constitutes or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on could reasonably be expected to lead to a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiationsSuperior Proposal. (c) Each Notwithstanding anything in this Section 6.9 to the contrary, at any time prior to the receipt of the Company and Stockholder Approval, the Seller Parent Board may (x) withdraw, modify or amend in any manner adverse to Purchaser its approval or recommendation of this Agreement or recommend a Competing Proposal, or enter into an Acquisition Agreement or resolve or agree to take any of the foregoing actions (a “Subject PartyChange of Recommendation”) agrees or (y) following receipt of an unsolicited written Competing Proposal that did not result from a material breach of Section 6.9(a) and which the Seller Parent Board determines in good faith, in consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal, terminate this Agreement in accordance with the provisions of Section 10.1(c)(iv) and enter into a definitive acquisition agreement, merger agreement or similar definitive agreement (i) during an “Acquisition Agreement” (for the five business day period prior to its taking any action referred to in clause (ii)(C) avoidance of the proviso in Section 6.04(bdoubt an Acceptable Confidentiality Agreement shall not constitute an Acquisition Agreement)) with respect to a Competing such Superior Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be of each of clauses (the “Proposing Party”x) and (y), if, and its outside legal counsel and financial advisors regarding any revisions to only if, the terms of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Seller Parent Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes determined in good faith, after consultation with its financial advisors and outside legal advisorscounsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law the Seller Parties comply with Section 6.9(d) and, in the case of clause (y), the Seller pays the Break-up Fee in accordance with Section 10.3. (d) Prior to any Seller Party taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, any action permitted (i) is more favorable under Section 6.9(c)(x), Seller Parent shall (A)provide Purchaser with at least four (4) Business Days’ prior written notice advising Purchaser it intends to effect a Change of Recommendation and specifying, in reasonable detail, the reasons therefor and all material information with respect thereto (including in relation to all developments related thereto), and (B) if requested by Purchaser, during such four (4) Business Day period, negotiate in good faith with Purchaser (to the stockholders extent Purchaser desires to negotiate) to enable Purchaser to propose in writing an offer binding on Purchaser to effect such adjustments to the terms and conditions of this Agreement such that the Seller Parent Board would determine in good faith, after consultation with its financial advisors and outside legal counsel, that the failure of the Company Seller Parent Board to make a Change of Recommendation would not be inconsistent with its fiduciary duties under applicable Law, or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed under Section 6.9(c)(y), Seller Parent shall provide Purchaser with at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or reasonably capable form of being fully financed consideration payable in connection with the applicable Competing Proposal shall require a new notice and otherwise reasonably capable a two (2) Business Day period) advising Purchaser that the Seller Parent Board intends to take such action, specifying the material terms and conditions of being completed the Superior Proposal and that the relevant Seller Party shall, if requested by Purchaser, during such four (4) Business Day period (or two (2) Business Day period, if applicable), negotiate with Purchaser (to the extent Purchaser desires to negotiate) to enable Purchaser to propose in writing an offer binding on Purchaser to effect such adjustments to the terms proposedand conditions of this Agreement such that such Competing Proposal would no longer constitute a Superior Proposal. (e) Seller shall notify Purchaser promptly (but in any event within 48 hours) after receipt of any bona fide Competing Proposal and the material terms and conditions of any such Competing Proposal. Seller Parent shall keep Purchaser reasonably informed of the status and material details (including any material amendments) of any such Competing Proposal and keep Purchaser reasonably informed as to the material details of all discussions or negotiations with respect to any such Competing Proposal (in each case in a manner that is not unduly disruptive of Seller Parent’s ability to conduct good faith discussions in accordance with this Section 6.9 with the party making such Competing Proposal and its Representatives) and shall provide Purchaser within 48 hours after receipt thereof all copies of any other material documentation, including any drafts of an Acquisition Agreement, with respect to such Competing Proposal; provided that, for purposes the sake of clarity, it is understood and agreed that all such information, documentation and communications shall be subject to the Confidentiality Agreement. (f) Nothing contained in this definition of “Superior Proposal,” Section 6.9 or elsewhere in this Agreement shall prohibit any Seller Party or the term “Seller Parent Board, directly or indirectly through its Representatives, from complying with its disclosure obligations under applicable Law with regard to an Competing Proposal” shall have , including taking and disclosing to the meaning assigned Seller Parent’s shareholders a position with respect to such term in Section 6.04(aa tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Seller Parent’s shareholders), except and none of the foregoing shall constitute a Change of Recommendation; provided that any such disclosure (other than a “stop, look and listen” communication or other similar communication of the reference to “15% type contemplated by Rule 14d-9(f) under the Exchange Act, or more” in an express rejection of the definition Competing Proposal or a reaffirmation of “Competing Proposal” the Seller Parent Recommendation) shall be deemed to be a reference Change of Recommendation if the Seller Parent Board fails to “expressly and publicly reaffirm the Seller Parent Recommendation within five (5) Business Days following any written request by Purchaser in response to such Seller Party disclosure (it being agreed that Purchaser may only make one (1) request with respect to any single such disclosure); provided that, in the event that a majority” and third party commences a tender offer or exchange offer, the shareholders Seller Parent Board shall have at least ten (10) Business Days from the date of commencement of the Company or Parent, as offer to expressly and publicly reaffirm the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing ProposalSeller Parent Recommendation.

Competing Proposals. Except for the Merger contemplated by this Agreement, from the date hereof until the Closing, unless and until this Agreement shall have been validly terminated in accordance with Article 9 of this Agreement, M & I and AAT shall not (a) The Company and Parent each agrees that (i) neither it, nor will permit any of its Subsidiariesofficers, nor any of its officers and directors, nor any officers agents or directors of its Subsidiaries shall and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to), directly or indirectly, initiate(a) solicit, solicit encourage or encourage participate in any inquiries negotiations or the making of any proposal or offer discussions with respect to a Competing Transaction (as defined below), (b) disclose any information concerning the business and properties of such party, afford access to the properties, books or records of such party or take any other action related to a Competing Transaction, (c) approve, endorse or recommend any Competing Transaction, or (d) execute or enter into any letter of intent or similar document or any agreement contemplating or otherwise relating to a Competing Transaction. Notwithstanding the foregoing, neither AAT nor M & I shall be prohibited from furnishing information to, or entering into discussions or negotiations in connection with an unsolicited proposal for a Competing Transaction if, and only to the extent that, such party has received an unsolicited bona fide written offer from a third party to enter into a Competing Transaction on terms and conditions that the board of directors of such party determines, in its reasonable, good faith judgment, after obtaining and taking into account such matters that its board of directors deems relevant following consultation with its outside legal counsel and financial advisor, if any, (i) is more favorable, from a financial point of view, to such party’s stockholders than the terms of the Merger; (ii) is reasonably capable of being consummated; (iii) consummation of such Competing Transaction would not require such party to breach any covenant or agreement under this Agreement, and (iv) that such party’s Board of Directors is required to consider such Competing Offer in order to comply with its fiduciary obligations to its stockholders imposed by applicable law. Prior to furnishing such information to, or entering into discussions or negotiations regarding a Competing Transaction such party shall obtain from the parties proposing such Competing Transaction an executed confidentiality agreement on terms no less favorable to such party than those contained in the Confidentiality Agreement between M & I and AAT. A “Competing Transaction” means any of the following involving either AAT or M & I or their respective stockholders (other than the Merger contemplated by this Agreement): (i) any acquisition, merger, reorganizationtake-over bid, share exchange, consolidationsale of substantial assets, business combination, reorganization, recapitalization, liquidation, dissolution or similar transaction transactions involving the Company or Parent, as the case may be, such party or any of its material Subsidiaries Subsidiary, (ii) any sale, lease, exchange, transfer or any purchase or sale other disposition of 15% or more of the assets of such party or any Subsidiary outside of the ordinary course of business, or (including, without limitation, iii) a sale of shares of the capital stock of its Subsidiariessuch party (including without limitation by way of a tender offer). Each of M & I and AAT agrees to notify the other party within one (1) day of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or commencement of any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”). (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activitiescontacts, discussions or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (c) Each of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect relating to a proposed Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such changeTransaction. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders of the Company or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing Proposal.

Competing Proposals. (a) The Company Sellers will not, and Parent each agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall and (ii) each of them shall direct and use its best efforts to they will cause its and its Subsidiaries’ employees, agents and their Representatives not to, directly or indirectly, initiate(i) solicit the submission of any Competing Proposal, solicit or encourage (ii) participate in any inquiries discussions or negotiations regarding, or furnish to any person any non-public information with respect to, any Competing Proposal. Subject to the limitations in Section 8.14(b), nothing contained in this Agreement will prohibit Sellers or any of their Affiliates or Representatives from (A) furnishing any information to, or entering into or participating in discussions or negotiations with, any person that makes an unsolicited written Competing Proposal which did not result from a breach of this Section 8.14 (a “Receiving Party”) if the Board or the making Conflicts Committee determines that furnishing such information to, or entering into or participating in discussions or negotiations with, any such Person is likely to be in the best interests of any proposal the Partnership or offer the Non-Affiliated Unitholders or (B) taking and disclosing a position with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may be, or any of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”)Exchange Act. (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives Sellers will not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (c) Each of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect to a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Proposing Receiving Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days with any non-public information or less prior data pertaining to the Company Stockholders’ Meeting Acquired Companies or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors any of the Company or Parent, as Assets (the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, “Non-Public Information”) unless (i) is more favorable to the stockholders Sellers have complied with all of the Company or Parenttheir obligations under this Section 8.14, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed the Board or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except Conflicts Committee determines that the reference provision of such Non-Public Information to “15% or more” the Receiving Party is likely to be in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders best interests of the Company Partnership or Parentthe Non-Affiliated Unitholders, as and (iii) Sellers have first required the case may be, would own less than 50% of Receiving Party to execute and deliver a confidentiality agreement with terms deemed reasonable in good faith by the equity interests having general voting power under ordinary circumstances Conflicts Committee. Sellers will promptly provide or make available to elect directors of the combined entities following consummation of Buyer any Non-Public Information that is provided or made available to any Receiving Party pursuant to this Section 8.14 which was not previously provided or made available to the Competing ProposalBuyer.

Competing Proposals. Buyer acknowledges and agrees that, during the period beginning on the date of this Agreement and continuing until 11:59 a.m. Pacific Time on June 1, 2009 (athe “Solicitation Period”), Seller, each of the Acquired Companies, and their respective officers, directors, managers, employees, investment bankers, attorneys and other advisors and representatives (collectively, the “Seller Representatives”) The Company and Parent each agrees that are permitted to (i) neither itdirectly or indirectly solicit, nor initiate or encourage the submission of competing proposals (collectively, “Alternate Solicitation Activities”) from any other Person to acquire the Interest or otherwise acquire all of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall the Acquired Companies (an “Alternate Transaction”) and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectlyindirectly participate in discussions or negotiations regarding, initiateand furnish to any Person with respect thereto, solicit or encourage and take any other action to facilitate any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may bethat constitutes, or any of its material Subsidiaries or any purchase or sale of 15% or more of the assets may reasonably be expected to lead to, an Alternate Transaction (includingcollectively, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (any such proposal, offer or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing ProposalAlternate Discussions”). (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing information in response Seller shall not, nor shall it authorize or permit any other Seller Representative to, provide or make available to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with any other Person any non-disclosure obligations and public information (other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in than any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (c) Each of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(bimmaterial non-public information) with respect to the Acquired Companies without first entering into a Competing Proposalcustomary confidentiality agreement with such Person that is not less restrictive than any confidentiality agreement entered into between or among Seller and/or AMG, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or on the Company, as the case may be (the “Proposing Party”)one hand, and its outside legal counsel and financial advisors regarding any revisions to Buyer, on the terms of the transactions contemplated by this Agreement proposed by the Proposing Party other hand, at which xxxx Xxxxxx shall notify Buyer that it has entered into a confidentiality agreement with such Person, and (iiB) the Subject Party may take Seller shall promptly provide to Buyer any non-public information concerning any Acquired Company that is provided or made available to such action Person or its representatives which was not previously provided or made available to Buyer. Unless Seller and/or AMG enters into one or more written term sheets with respect to Persons other than Buyer (each, a “Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed Offeror”) prior to the expiration of such five business day period. The Subject Party agrees the Solicitation Period for an Alternate Transaction that it will deliver does not have a “financing out” condition to the Proposing Party Competing Offeror’s obligation to consummate the Alternate Transaction (each, a new notice with respect to each “Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders Offer”), then from and that a new five business day period shall commence, for purposes after the end of the Solicitation Period and continuing through the date of termination (if any) of this Agreement pursuant to Section 6.04(c)6.3 above, with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal Seller and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” Seller Representatives shall be deemed to be a reference to “a majority” prohibited from engaging in any manner, directly or indirectly, in any Alternate Solicitation Activities or Alternate Discussions and the shareholders of the Company shall immediately terminate any ongoing Alternate Solicitation Activities or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing ProposalAlternate Discussions.

Competing Proposals. (a) The Company PHH Parties will, and Parent will direct each agrees of their respective Subsidiaries and Representatives to, cease any discussions or negotiations with any Persons that may be ongoing with respect to a Competing Proposal. From the date of this Agreement and until the Final Closing, or the earlier termination of this Agreement in accordance with its terms, the PHH Parties will, and will direct each of its Subsidiaries and Representatives to, not (i) neither itdirectly or indirectly through another Person solicit, nor initiate or knowingly encourage any of its Subsidiariesinquiries, nor proposals or offers from any of its officers and directors, nor any officers or directors of its Subsidiaries shall and Person (ii) each of them shall direct and use its best efforts to cause its other than Buyer and its Subsidiaries’ employeesAffiliates) regarding, agents and Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Competing Proposal, (ii) engage in or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with respect or for the purpose of encouraging or facilitating, a Competing Proposal, (iii) enter into any letter of intent or any other Contract providing for a Competing Proposal, or (iv) agree or resolve to a mergertake, reorganizationany of the actions prohibited by clauses (i) — (iv) of this sentence. (b) Notwithstanding anything to the contrary contained in this Agreement, share exchangeif at any time prior to obtaining the Stockholder Approval, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may be, PHH or any of its material Subsidiaries or Representatives receives an unsolicited written Competing Proposal from any purchase Person or sale group of 15% Persons, which Competing Proposal did not result from any material breach of this Section 4.2, (i) PHH and its Representatives may contact such Person or more group of Persons to clarify the terms and conditions thereof, and (ii) if the PHH Board or a duly constituted and authorized committee thereof determines, after consultation with its outside legal counsel and financial advisors, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then PHH and its Representatives may (A) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to Sellers and its Subsidiaries and the Business to the Person or group of Persons who has made such Competing Proposal (provided that PHH will promptly (and in any event within 24 hours) cause to be provided to Buyer any written material non-public information concerning any Seller or the Business that is provided to any Person given such access which was not previously provided to Buyer or its Representatives), and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Competing Proposal. (c) PHH will keep Buyer reasonably informed of the assets status and any material developments, discussions or negotiations regarding any Competing Proposal on a prompt basis (includingand in any event within 24 hours). The PHH Parties agree and shall cause their Subsidiaries to agree not to enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the PHH Parties from providing any information to Buyer in accordance with this Section 4.2. (d) Except as expressly permitted by this Section 4.2(d) or Section 4.2(f), without limitationfrom the date of this Agreement and until the First Closing Effective Time or the earlier termination of this Agreement in accordance with its terms, stock of its Subsidiariesthe PHH Board will not (i) of (A) fail to include the Company PHH Recommendation in the Proxy Statement, (B) change, qualify, withhold, withdraw or Parent, as the case may be, and its respective Subsidiaries, taken as a wholemodify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Buyer, the PHH Recommendation, (C) take any purchase formal action or sale ofmake any recommendation or public statement in connection with a tender offer or exchange offer that constitutes a Competing Proposal other than a recommendation against such offer or a “stop, look and listen” communication or other public disclosure that the PHH Board determines, after consultation with its outside legal counsel , is required to be disclosed by Law (provided that the PHH Board may refrain from taking a position with respect to any such tender or exchange offer for, voting securities until the close of business as of the Company tenth Business Day after the commencement of the offer pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered an adverse modification), or Parent(D) adopt, as the case may beapprove or recommend, thator publicly propose to adopt, if consummatedapprove or recommend, would result in any person (or to the stockholders of PHH, a Competing Proposal (the actions described in this clause (i) being referred to as an “Acquisition Recommendation Change”), or (ii) authorize, cause or permit PHH or any of its Subsidiaries to enter into any letter of intent or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (Contract with respect to any such proposal, offer or transaction Competing Proposal (other than a proposal or offer made by the Company or Parentan Acceptable Confidentiality Agreement) (each, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing ProposalAcquisition Agreement”). (be) The Company and Parent each further agrees that (i) neither itNotwithstanding anything to the contrary set forth in this Agreement, nor any of its Subsidiariesprior to the time the Stockholder Approval is obtained, nor any of its officers and directorsthe PHH Board may, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating response to a Competing Proposal, make an Acquisition Recommendation Change, enter into an Acquisition Agreement or take any action otherwise prohibited by this Section 4.2 if the PHH Board or a duly constituted and authorized committee thereof has determined in good faith that (1) after consultation with its outside legal counsel, the failure to do so could be inconsistent with the PHH Board’s fiduciary duties under applicable Law and (2) after consultation with its outside legal counsel and financial advisors, such Competing Proposal constitutes a Superior Proposal; provided, however, that nothing set forth in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions of, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, the time this Agreement is adopted at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicable, (A) providing PHH has given Buyer at least four Business Days prior written notice of its intention to effect an Acquisition Recommendation Change or enter into an Acquisition Agreement, specifying, in reasonable detail, the reasons therefor and all material information with respect thereto (including in response relation to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement with non-disclosure obligations and other terms substantially similar to those contained in the Confidentiality Agreement applicable to such party; it being understood that such confidentiality agreement need not prohibit the making, or amendment, of a Competing Proposal publicly made prior to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (x) in each such case referred to in clause (Aall material developments related thereto), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable LawPHH has negotiated, and (y) in each case referred to in clause (B) or (C) above, the Company or Parent, as the case may be, is in compliance with this Section 6.04 and the Board of Directors of the Company or Parent, as the case may be, determines in good faith (after consultation with its financial advisor) that such Competing Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making such proposal, and, if consummated, would constitute a Superior Proposal. The Company and Parent each agrees that it will immediately, and will request that its Representatives, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform has caused its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiriesto negotiate, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers, and thereafter shall keep Parent or the Company, as the case may be, informed, on a current basis (but in any case within 12 hours), on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (c) Each of the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect to a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or Buyer during such notice period, to the Companyextent Buyer wishes to negotiate, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any to enable Buyer to propose in writing an offer binding on Buyer to effect revisions to the terms of the transactions contemplated by this Agreement proposed by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company PHH Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation or a Change in Parent Recommendation in respect of a Competing Proposal that is received ten days or less prior would be able to the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice to the other party prior to making such change. (d) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes determine in good faith, after consultation with its financial advisors and outside legal advisorscounsel, taking that the failure of the PHH Board to make an Acquisition Recommendation Change or enter into account an Acquisition Agreement would not be inconsistent with its fiduciary duties under applicable Law, (C) following the end of such notice period, the PHH Board or a duly constituted and authorized committee thereof shall have considered in good faith such binding offer, and shall have determined that the Superior Proposal continues to constitute a Superior Proposal if the revisions proposed in such binding offer were to be given effect, and (D) in the event of any material change to the material terms of such Superior Proposal (including any change in price), PHH shall, in each case, have delivered to Buyer an additional notice consistent with that described in clause (A) above and the notice period will have recommenced, except that the notice period will be at least two Business Days (rather than the four Business Days otherwise contemplated by clause (A) above). Notwithstanding anything to the contrary herein, nothing herein shall obligate Realogy or its Affiliates to enter into a joint venture, directly or indirectly, with any third party, and Realogy and its Affiliates shall retain all legal, financial, regulatory of their existing consent and other aspects rights under the Existing JV Agreements. (f) Notwithstanding anything to the contrary herein, prior to the time the Stockholder Approval is obtained, the PHH Board may change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Buyer, the PHH Recommendation (“Change of Recommendation”) if the proposal PHH Board or a duly constituted and authorized committee thereof has determined, after consultation with its outside legal counsel, that failure to take such action could be inconsistent with the Person making the proposal PHH Board’s fiduciary duties under applicable Law; provided, however, that such action may only be in response to an Intervening Event and not in response to a Competing Proposal or a Superior Proposal (which is governed by Section 4.2(d)) and prior to taking such other matters as such Board of Directors deems relevantaction, (i) is more favorable the PHH Board shall have given Buyer at least four Business Days’ prior written notice of its intention to take such action and a description of the reasons for the Change of Recommendation, (ii) PHH shall have negotiated, and has caused its Representatives to negotiate, in good faith with Buyer during such notice period after giving any such notice, to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may beextent Buyer wishes to negotiate, to amend or modify enable Buyer to propose in writing an offer binding on Buyer to effect revisions to the terms of this Agreement in such a manner that would obviate the transactions need for making such Change of Recommendation, and (iii) at the end of such notice period, the PHH Board or a duly constituted and authorized committee thereof shall have considered in good faith such binding offer, and shall have determined in good faith, after consultation with its outside legal counsel, that failure to effect a Change of Recommendation could be inconsistent with the PHH Board’s fiduciary duties under applicable Law. (g) Nothing contained in this Section 4.2 or in Section 4.5 will prohibit PHH or the PHH Board from taking and disclosing to its stockholders a position contemplated by this AgreementRule 14e-2(a) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on Rule 14d-9 promulgated under the terms proposed; provided thatExchange Act or from making any other disclosure to PHH’s stockholders if, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition PHH Board’s determination after consultation with outside legal counsel, the failure so to disclose could be inconsistent with its or PHH’s obligations under applicable Law, provided that any such disclosure (other than a “stop, look and listen” communication or other similar communication of “the type contemplated by Rule 14e-2(a) or Rule 14d-9(f) under the Exchange Act, or an express rejection of the Competing Proposal” Proposal or a reaffirmation of the PHH Recommendation) shall be deemed to be an Acquisition Recommendation Change if the PHH Board fails to expressly and publicly reaffirm the PHH Recommendation within five Business Days following any written request by Buyer in response to such PHH Party disclosure (it being agreed that Buyer may only make one request with respect to any single such disclosure); provided that, in the event that a reference to “third party commences a majority” and tender offer or exchange offer, the shareholders PHH Board shall have at least 10 Business Days from the date of commencement of the Company or Parent, as offer to expressly and publicly reaffirm the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing ProposalPHH Recommendation.

Competing Proposals. (a) The Except as otherwise provided in this Section 6.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company and Parent each agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall will not, and (ii) each of them shall direct and will use its their reasonable best efforts to cause its their respective officers, directors, employees and its Subsidiaries’ employees, agents and other Representatives not to, (i) initiate, solicit or knowingly encourage or facilitate, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any Competing Proposal or (ii) engage in negotiations or substantive discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 6.5), or furnish any nonpublic information to, any Person relating to a Competing Proposal or any inquiry or proposal that may reasonably be expected to lead to a Competing Proposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or offer negotiations with any Person conducted heretofore with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or Parent, as the case may beany Competing Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Competing Proposal, request the prompt return or destruction of its material Subsidiaries or any purchase or sale of 15% or more of the assets (including, without limitation, stock of its Subsidiaries) of the Company or Parent, as the case may be, all confidential information previously furnished in connection therewith and its respective Subsidiaries, taken as a whole, or any purchase or sale of, or tender or exchange offer for, voting securities of the Company or Parent, as the case may be, that, if consummated, would result in any person (or the stockholders or other equity owners of such person) beneficially owning securities representing 15% or more of the total voting power of the Company or Parent, as the case may be (or of the surviving parent entity in such transaction) (immediately terminate all physical and electronic dataroom access previously granted to any such proposal, offer Person or transaction (other than a proposal or offer made by the Company or Parent, as the case may be, or an affiliate thereof) being hereinafter referred to as a “Competing Proposal”)its Representatives. (b) The Company and Parent each further agrees that (i) neither it, nor any of its Subsidiaries, nor any of its officers and directors, nor any officers or directors of its Subsidiaries shall, and (ii) each of them shall direct and use its best efforts Notwithstanding anything to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to a Competing Proposal; provided, however, that nothing set forth the contrary in this Section 6.04 shall prevent either the Company or Parent or their respective Boards of Directors from (i) complying with its disclosure obligations pursuant to the applicable provisions ofAgreement, and the rules promulgated under, Sections 14(a), 14(d) or 14(e) of the Exchange Act with regard to a Competing Proposal; and (ii) at any time prior to, but not after, from the time date of this Agreement and prior to the date that the Requisite Stockholder Approval is adopted obtained at the Company Stockholders’ Meeting or the Share Issuance is approved at the Parent Stockholders’ Meeting, as applicablein the event that the Company receives a written Competing Proposal, the Company and its board of directors may engage in negotiations or substantive discussions with, or furnish any information and other access to, any Person making such Competing Proposal and its Representatives or potential sources of financing if the Company’s board of directors determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Competing Proposal could reasonably be expected to result in a Superior Proposal; provided that (Ax) providing information in response prior to furnishing any nonpublic information, the Company receives from such Person, to the extent such Person is not already subject to a request therefor by a person who has made an unsolicited bona fide written Competing Proposal if confidentiality agreement with the Board of Directors receives from the person so requesting such information Company, an executed confidentiality agreement with non-disclosure obligations and other containing terms substantially similar that are not materially less favorable to the Company than those contained in the Confidentiality Agreement applicable to such party; (it being understood and agreed that such confidentiality agreement need not prohibit restrict the making, or amendment, making of a Competing Proposal publicly made prior Proposals (and related communications) to such time; (B) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Competing Proposal; or (C) recommending such a Competing Proposal to the stockholders of the Company or Parent, as the case may be, if and only to the extent that, (xCompany’s board of directors) in each such case referred to in clause (A), (B) or (C) above, the Board of Directors of the Company or Parent, as the case may be, determines in good faith after consultation with outside legal counsel that such action, in light of the Competing Proposal and the terms of this Agreement, is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, and (y) any such nonpublic information so furnished in each case writing has been previously provided to Parent or is provided to Parent substantially concurrently with it being so furnished to such Person or its Representatives. Prior to or substantially concurrently with taking any of the actions referred to in clause this Section 6.5(b), the Company shall notify Parent that it proposes to furnish and thereafter make available to Parent any nonpublic information and promptly notify Parent if it has entered or intends to enter into discussions or negotiations as provided in this Section 6.5(b). (c) Except as otherwise provided in this Agreement, the board of directors of the Company (or any committee thereof) shall not (i) (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the Company Recommendation or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Competing Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (Cii) aboveapprove or recommend, or allow the Company or Parentany of its Affiliates to execute or enter into, as any letter of intent, memorandum of understanding or definitive merger or similar agreement with respect to any Competing Proposal (other than a confidentiality agreement referred to in Section 6.5(b)). Notwithstanding anything in this Agreement to the case may becontrary, is in compliance with this Section 6.04 and at any time prior to receipt of the Board Requisite Stockholder Approval, (i) the board of Directors directors of the Company or Parent, as may make an Adverse Recommendation Change if the case may be, board of directors of the Company determines in good faith (after consultation with its counsel and financial advisoradvisors) that the failure to take such Competing Proposal, if accepted, is action would be reasonably likely to be consummatedinconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law and (ii) the board of directors of the Company may enter into a binding written agreement substantially concurrently with the termination of this Agreement in accordance with Section 8.1(c)(ii) in order to enter into a transaction that the board of directors of the Company has determined in good faith (after consultation with its counsel and financial advisors) constitutes a Superior Proposal; provided, however, that (1) no Adverse Recommendation Change may be made and (2) no termination of this Agreement pursuant to this Section 6.5(c) and Section 8.1(c)(ii) may be effected, in each case unless (A) Parent has received a written notice from the Company advising Parent that the board of directors of the Company intends to make an Adverse Recommendation Change (a “Notice of Adverse Recommendation”) or terminate this Agreement pursuant to this Section 6.5(c) and Section 8.1(c)(ii) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including, if the basis of the proposed action by the Company’s board of directors is a Superior Proposal, the terms and conditions of any such Superior Proposal, (B) during the five (5) Business Day period following Parent’s receipt of the Notice of Superior Proposal or Notice of Adverse Recommendation, as applicable, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, the Financing Commitments and/or the Guaranty so that such Superior Proposal ceases to constitute a Superior Proposal and/or so that the failure to take make an Adverse Recommendation Change would not be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law and (C) following the end of the five (5) Business Day period, the board of directors of the Company shall have determined in good faith after consultation with its financial and legal advisors, taking into account all legalany changes to this Agreement, financial the Financing Commitments and/or the Guaranty proposed in writing by Parent and regulatory aspects Acquisition Sub in response to the Notice of Superior Proposal or Notice of Adverse Recommendation or otherwise, that the proposal and Superior Proposal giving rise to the person making such proposal, and, if consummated, would Notice of Superior Proposal continues to constitute a Superior Proposal and/or that the failure to take make an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 6.5(c); provided, however, that references to the five (5) Business Day period above shall be deemed to be references to a three (3) Business Day period. Subject to the foregoing, in determining whether to make an Adverse Recommendation Change or in determining whether a Competing Proposal constitutes a Superior Proposal. , the board of directors of the Company shall take into account any changes to the terms of this Agreement timely proposed by Parent in response to a Notice of Adverse Recommendation, a Notice of Superior Proposal or otherwise. (d) The Company and Parent each agrees that it will immediatelyshall promptly, and will request that its Representativesin any event within two (2) Business Days, cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to advise Parent of any Competing Proposal. The Company and Parent each agrees that it will take the necessary steps to promptly inform its Representatives of the obligations undertaken in this Section 6.04 and under the Confidentiality Agreements. The Company and Parent each agrees that it will notify the other promptly (but in any case within 12 hours) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any such Competing Proposal (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter the identity of the Person making any such Competing Proposal. The Company shall keep Parent or the Company, as the case may be, informed, reasonably informed on a reasonably current basis (but in any case within 12 hours), on of the status and material details (including any material change to the terms thereof) of any such proposals Competing Proposal and any discussions and negotiations concerning the material terms and conditions thereof. The Company hereby agrees that it shall not, and shall not permit its Subsidiaries to, enter into any agreement that prohibits or offers and restricts it from providing to Parent the status of any such discussions information contemplated by this Section 6.5(d) or negotiationscomplying with Section 6.5(c). (ce) Each of Nothing in this Agreement shall restrict the Company and Parent (the “Subject Party”) agrees that (i) during the five business day period prior to its from taking any action referred to in clause (ii)(C) of the proviso in Section 6.04(b) with respect to or disclosing a Competing Proposal, it and its outside legal counsel and financial advisors shall negotiate in good faith with Parent or the Company, as the case may be (the “Proposing Party”), and its outside legal counsel and financial advisors regarding any revisions to the terms of the transactions position contemplated by this Agreement proposed Rules 14d-9 or 14e-2(a) under the Exchange Act, or otherwise making disclosure to comply with applicable Law (it being agreed that a “stop, look and listen” communication by the Proposing Party and (ii) the Subject Party may take any such action with respect to a Competing Proposal that was a Superior Proposal only if the Board of Directors of the Subject Party determines in good faith that such Competing Proposal continues to be a Superior Proposal in light of any revisions to the terms of the transaction contemplated by this Agreement to which the Proposing Party shall have agreed prior to the expiration of such five business day period. The Subject Party agrees that it will deliver to the Proposing Party a new notice with respect to each Competing Proposal that has been materially revised or modified prior to taking any action to recommend or agreeing to recommend such Competing Proposal to its stockholders and that a new five business day period shall commence, for purposes of this Section 6.04(c), with respect to each such revised or modified Competing Proposal from the time the Proposing Party receives such notice. Notwithstanding the foregoing, provided that the Company Board or the Parent Board, as the case may be, complies with Section 6.04(b), nothing in this section 6.04(c) shall prohibit either such board of directors from making a Change in Company Recommendation to the Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange Act or a Change in Parent Recommendation in respect factually accurate public statement by the Company that describes the Company’s receipt of a Competing Proposal that is received ten days and the operation of this Agreement with respect thereto shall not be deemed to be an Adverse Recommendation Change or less prior give rise to the Company Stockholders’ Meeting or the a Parent Stockholders’ Meeting, as the case may be, so long as the party making such change in recommendation provides notice termination right pursuant to the other party prior to making such changeSection 8.1(d)(ii)). (df) For purposes of this Agreement, “Superior Proposal” means an unsolicited bona fide written Competing Proposal which the Board of Directors of the Company or Parent, as the case may be, concludes in good faith, after consultation with its financial advisors and outside legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal and such other matters as such Board of Directors deems relevant, (i) is more favorable to the stockholders of the Company or Parent, as the case may be, from a financial point of view, than the transactions contemplated by this Agreement (including the terms, if any, proposed by Parent or the Company, as the case may be, to amend or modify the terms of the transactions contemplated by this Agreement) and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of “Superior Proposal,” the term “Competing Proposal” shall have the meaning assigned to such term in Section 6.04(a), except that the reference to “15% or more” in the definition of “Competing Proposal” shall be deemed to be a reference to “a majority” and the shareholders of the Company or Parent, as the case may be, would own less than 50% of the equity interests having general voting power under ordinary circumstances to elect directors of the combined entities following consummation of the Competing Proposal.: