Common use of Discussions Permitted in Certain Circumstances Clause in Contracts

Discussions Permitted in Certain Circumstances. Before receipt of the Company Stockholder Approval, the Company and its Representatives may, directly or indirectly through any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Company Takeover Proposal that (x) the Company Board (or a duly formed committee thereof) determines, in good faith, after consultation with the Company’s financial advisor and outside legal counsel, is reasonably likely to result in a Superior Company Proposal and (y) that was not solicited by the Company and that did not otherwise result from a material breach of this Section 5.02, and subject to compliance in all material respects with Section 5.02(f) (Required Notices), (i) participate in discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and (ii) furnish to such Person and its Representatives (including its potential financing sources) any information (including non-public information) related to the Company, and provide access to the Company’s assets, properties and business facilities. Prior to engaging in any such discussions or negotiations with such Person, the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposal. The Company shall provide to Parent copies of all nonpublic information (to the extent that such nonpublic information has not been previously provided or Made Available) that is made available to any such Person before or substantially concurrently with the time it is provided or made available to such Person. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c) unless the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves to take such action, which notice shall include the identity of such Person, a true and complete copy of the most current version of any applicable unsolicited request or Company Takeover Proposal (including any proposed agreement or other offer documents) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, however, the identity of such Person need not be disclosed to Parent if providing such information would violate the terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request or Company Takeover Proposal shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement.

Discussions Permitted in Certain Circumstances. Before Notwithstanding anything to the contrary contained in this Agreement, before receipt of the Company Stockholder Approval, the Company and its Representatives may, directly or indirectly through any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Company Takeover Proposal that (x) did not result from a material breach of Section 5.03(b), if the Company Board (or a duly formed committee thereof) determines, in good faith, after consultation with outside counsel and the Company’s financial advisor and outside legal counseladvisor, (x) that it is reasonably likely to result in a Superior Company Proposal and (y) that was not solicited by failure to take the actions set forth in clauses (i) and (ii) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and that did not otherwise result from a material breach of this Section 5.02its Representatives may, and subject in response to compliance in all material respects with Section 5.02(f) (Required Notices)such Company Takeover Proposal, (i) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement and (ii) participate in discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and (ii) furnish to such Person and its Representatives (including its potential financing sources) any information (including non-public information) related to the Company, and provide access to the Company’s assets, properties and business facilities. Prior to engaging in any such discussions or negotiations with such Person, the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposal. The Company shall provide make available to Parent copies of all nonpublic material non-public information (to the extent that such nonpublic non-public information has not been previously provided or Made Availablemade available to Parent) that is made available to any such Person third party before or substantially concurrently with the time it is provided or made available to such Personthird party. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c5.03(c) unless the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves determines to take such actionaction but in any event not more than twenty-four (24) hours after such determination, which notice shall include the identity of such Person, a true and complete copy of the most current version of any applicable unsolicited request or Company Takeover Proposal information required by Section 5.03(f) (including any proposed agreement or other offer documents) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, however, the identity of such Person need not be disclosed to Parent if providing such information would violate the terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request or Company Takeover Proposal shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality AgreementRequired Notices).

Discussions Permitted in Certain Circumstances. Before Notwithstanding anything to the contrary contained in this Agreement, before receipt of the Company Stockholder Approval, the Company and its Representatives may, directly or indirectly through any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Company Takeover Proposal that (x) did not result from a material breach of Section 5.02(b), if the Company Board (or a duly formed committee thereof) determines, in good faith, after consultation with outside counsel and the Company’s financial advisor and outside legal counseladvisor, (x) that it is reasonably likely to result in a Superior Company Proposal and (y) that was not solicited by failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and that did not otherwise result from a material breach of this Section 5.02its Representatives may, and subject in response to compliance in all material respects with Section 5.02(f) (Required Notices)such Company Takeover Proposal, (iA) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement and (B) participate in discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and (ii) furnish to such Person and its Representatives (including its potential financing sources) any information (including non-public information) related to the Company, and provide access to the Company’s assets, properties and business facilities. Prior to engaging in any such discussions or negotiations with such Person, the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposal. The Company shall provide make available to Parent copies of all nonpublic material non-public information (to the extent that such nonpublic non-public information has not been previously provided or Made Availablemade available to Parent) that is made available to any such Person third party before or substantially concurrently with the time it is provided or made available to such Personthird party. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c) unless the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves determines to take such actionaction but in any event not more than twenty-four (24) hours after such determination, which notice shall include any information required by Section 5.02(f) (Required Notices). The parties agree that, notwithstanding the identity of such Person, a true and complete copy commencement of the most current version obligations of any applicable unsolicited request or the Company Takeover Proposal under Section 5.02(b) (including any proposed agreement or other offer documentsProhibition on Soliciting Activities) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, howeveron the No-Shop Period Start Date, the identity of such Person need not be disclosed Company, the Company Subsidiaries and their Representatives may continue to Parent if providing such information would violate engage in the terms of a confidentiality agreement activities described in effect prior to the date clause (A) or clause (B) of this Agreement. The terms Section 5.02(c) with respect to any Excluded Party on and existence of after the No-Shop Period Start Date for so long as the Excluded Party remains an Excluded Party, including with respect to any amended or revised proposal submitted by such unsolicited request Excluded Party on or Company Takeover Proposal after the No-Shop Period Start Date, and this Section 5.02(c) shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreementnot apply with respect thereto.

Discussions Permitted in Certain Circumstances. Before Notwithstanding anything to the contrary contained in this Agreement, including Section 5.02(b) (Prohibition on Soliciting Activities), if at any time from and after the date hereof and prior to receipt of the Company Stockholder Approval, the Company receives from any Person or group a written Company Takeover Proposal that has not been withdrawn and its Representatives may, directly or indirectly through any Representative, to the extent that the failure Company Board (which, for purposes of this Section 5.02, shall be deemed to do so include any duly authorized committee thereof) determines in good faith, After Consultation, constitutes, or would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Lawlead to, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Company Takeover Proposal that (x) the Company Board (or a duly formed committee thereof) determines, in good faith, after consultation with the Company’s financial advisor and outside legal counsel, is reasonably likely to result in a Superior Company Proposal and that did not result from a breach of Section 5.02(a) (yTermination of Existing Discussions) that was not solicited by or Section 5.02(b) (Prohibition on Soliciting Activities), then the Company and that did not otherwise result from a material breach any of this Section 5.02its Representatives shall , and subject to compliance in all material respects with Section 5.02(f) (Required Notices), be permitted to (i) participate in discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and (iiA) furnish to such Person or group and its Representatives (including its potential financing sources) any information (including non-public information) related or their Representatives, pursuant to the Company, and provide access to the Company’s assets, properties and business facilities. Prior to engaging in any such discussions or negotiations with such Person, the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect (a copy of such Company Takeover Proposal. The Company which shall provide be furnished to Parent copies within one Business Day of all nonpublic the execution thereof by the Company), information (with respect to the extent that such nonpublic information has not been previously provided or Made AvailableCompany and the Company Subsidiaries and (B) that is made available to any such Person before or substantially concurrently with the time it is provided or made available to such Person. The Company shall not furnish any nonpublic information engage or participate in any discussions or negotiations with such Person, group and its or their Representatives regarding any Person pursuant to Company Takeover Proposal; it being hereby acknowledged and agreed that nothing contained in this Section 5.02(c) unless shall be deemed to prohibit the Company notifies or its Representatives from contacting any Person who has submitted (not in violation of Section 5.02(a) or Section 5.02(b)) to the Company or its Representatives a written offer, expression of interest or proposal, which has not been withdrawn, for the sole purpose of ascertaining any necessary clarification of the material terms and conditions thereof (subject to compliance with Section 5.02(f) (Required Notices). The Company shall make available to Parent copies of all material non-public information (to the extent such information has not previously been furnished or made available to Parent) that it has furnished or made available to any such Person in writing of its intention accordance with the preceding sentence before or substantially concurrently with the time such information is furnished or made available to take such actionPerson. Notwithstanding anything to the contrary in this Agreement, promptly the Confidentiality Agreement or the Standstill Agreements, if any Acceptable Confidentiality Agreement is entered into after the date hereof between the Company Board resolves and any other Person (to take the extent permitted by this Section 5.02(c)) which contains provisions that are less restrictive on such action, which notice shall include Person and/or less favorable to the identity of such Person, a true and complete copy Company than the provisions of the most current version Confidentiality Agreement or the Standstill Agreements are on Parent, such provisions of the Confidentiality Agreement and/or the Standstill Agreements automatically shall be amended and modified without the necessity of further action by any party thereto so that the provisions set forth therein as so amended and modified are no more restrictive as to Parent or less favorable to the Company than the provisions applicable unsolicited request or Company Takeover Proposal (including any proposed agreement or other offer documents) and a true and complete copy of to such Person pursuant to such Acceptable Confidentiality Agreement; provided, however, the identity of such Person need not be disclosed to Parent if providing such information would violate the terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request or Company Takeover Proposal shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement.

Discussions Permitted in Certain Circumstances. Before receipt of Notwithstanding anything to the Company Stockholder Approvalcontrary contained in this Agreement, including Section 4(k)(ii), if at any time during the Non-Solicitation Period, the Company and or any of its Representatives may, directly or indirectly through receives from any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to Person a bona fide written Acquisition Proposal and (1) such Acquisition Proposal did not result directly or indirectly from any breach by the Company Takeover Proposal that of this Section 4(k), (x2) the Company Board (or a duly formed committee thereof) determines, of Directors determines in good faith, after consultation with the Company’s its financial advisor and outside legal counselcounsel that, (A) such Acquisition Proposal is, or is reasonably likely to result in lead to, a Superior Company Proposal (as defined below) and (yB) that was not solicited by the failure to take the actions referred to below in clauses (I) and (II) of this Section 4(k)(iii) would be inconsistent with the fiduciary duties of the Board of Directors under applicable law, and (3) the Company has given the Buyer prior written notice of its intention to take any such actions, then the Company and that did not otherwise result from a material breach of this Section 5.02its Subsidiaries and its or their respective Representatives shall be permitted to, and subject to compliance in all material respects with Section 5.02(f) (Required Notices)directly or indirectly, (iI) participate engage in negotiations or discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and Representatives, (iiII) furnish to such Person and or its Representatives (including its potential financing sources) any information (including non-public information) related information relating to the CompanyCompany or any of its Subsidiaries; provided that such information shall be subject to a confidentiality agreement between the Company and the Person receiving such information that contains confidentiality and standstill obligations and covenants of such Person that the Board of Directors determines in good faith are no less favorable in the aggregate to the Company than the obligations and covenants of the Buyer contained in the Non-Disclosure Agreement (as defined below), and provide access to which shall not restrict, in any manner, the Company’s assetsability to consummate the Proposed Transactions or to comply with its disclosure obligations to the Buyer pursuant to this Agreement, properties and business facilities. Prior to engaging in (III) take any such discussions or negotiations with such Personnonappealable, final action that any court of competent jurisdiction orders the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposalto take. The Company shall provide to Parent copies of all nonpublic information promptly (and in any event within twenty-four (24) hours) make available to the extent that Buyer any such nonpublic information has not been previously provided or Made Available) that is made available provided to any such Person before by or substantially concurrently with on behalf of the time it is Company and which was not previously provided to or made available to such PersonBuyer. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c) unless the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves to take such action, which notice shall include the identity of such Person, a true and complete copy of the most current version of any applicable unsolicited request or Company Takeover Proposal (including any proposed agreement or other offer documents) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, however, the identity of such Person need not be disclosed to Parent if providing such information would violate the terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request or Company Takeover Proposal shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement.37

Discussions Permitted in Certain Circumstances. Before receipt of Notwithstanding anything to the Company Stockholder Approvalcontrary contained in this Agreement, including without limitation Section 3.10(b), if at any time during the Non-Solicitation Period, the Company and or any of its Representatives may, directly or indirectly through receives from any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to Person a bona fide written Acquisition Proposal and (1) such Acquisition Proposal did not result directly or indirectly from any breach by the Company Takeover Proposal that of this Section 3.10, (x2) the Company Board (or of Directors and/or a duly formed special committee thereof) determines, thereof determines in good faith, after consultation with the Company’s its financial advisor and outside legal counselcounsel that, (A) such Acquisition Proposal is, or there is reasonably likely to result in a reasonable possibility that such Acquisition Proposal may lead to, a Superior Company Proposal (as defined below) and (yB) that was not solicited by the failure to take the actions referred to below in clauses (I) and (II) of this Section 3.10(c) would reasonably be expected to be inconsistent with the fiduciary duties of the Board of Directors under applicable law, and (3) the Company has given the Purchaser prior written notice of its intention to take any such actions, then the Company and that did not otherwise result from a material breach of this Section 5.02its Subsidiaries and its or their respective Representatives shall be permitted to, and subject to compliance in all material respects with Section 5.02(f) (Required Notices)directly or indirectly, (iI) participate engage in negotiations or discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and and/or (iiII) furnish to such Person and or its Representatives (including its potential financing sources) any information (including non-public information) related information relating to the CompanyCompany or any of its Subsidiaries; provided that such information shall be subject to a confidentiality agreement between the Company and the Person receiving such information that contains confidentiality and standstill obligations and covenants of such Person that the Board of Directors determines in good faith are no less favorable in the aggregate to the Company than the obligations and covenants of the Purchaser contained in the Non-Disclosure Agreement (as defined below), and provide access to which confidentiality agreement shall not by its terms restrict, in any manner, the Company’s assetsability to consummate the Proposed Transactions or to comply with its disclosure obligations to the Purchaser pursuant to this Agreement, properties and business facilities. Prior to engaging in (III) take any such discussions or negotiations with such Personnonappealable, final action that any court of competent jurisdiction orders the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposalto take. The Company shall provide to Parent copies of all nonpublic information promptly (and in any event within forty-eight (48) hours) make available to the extent that Purchaser any such nonpublic information has not been previously provided or Made Available) that is made available provided to any such Person before by or substantially concurrently with on behalf of the time it is Company and which was not previously provided to or made available to such PersonPxxxxxxxx. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c) unless the Company notifies Parent in writing of its intention to take such action, promptly after the Company Board resolves to take such action, which notice shall include the identity of such Person, a true and complete copy of the most current version of any applicable unsolicited request or Company Takeover Proposal (including any proposed agreement or other offer documents) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, however, the identity of such Person need not be disclosed to Parent if providing such information would violate the terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request or Company Takeover Proposal shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement.00

Discussions Permitted in Certain Circumstances. Before receipt of the Company Stockholder Approval, the Company and its Representatives may, directly or indirectly through any Representative, to the extent that the failure to do so would reasonably be expected to be a breach of the fiduciary duties of if the Company Board under applicable Law, as determined in good faith by the Company Board after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Company Takeover Proposal that (x) the Company Board (or a duly formed committee thereof) determines, in good faith, after consultation with outside counsel, that a failure to do so would be inconsistent with their directors’ duties under Maryland law, and subject to the Company’s compliance with Section 4.8(f), in response to a bona fide, written Company Takeover Proposal received after the date of this Agreement that the Company Board determines, in good faith, after consultation with outside counsel and its financial advisor and outside legal counseladvisors, constitutes or is reasonably likely to result capable of resulting in a Superior Company Proposal, and so long as such written Company Takeover Proposal and (y) that was not solicited by the Company and that did not otherwise result from a material breach or a deemed breach of this Section 5.02, and subject to compliance in all material respects with Section 5.02(f) (Required Notices)4.8, (i) furnish information with respect to the Company to the Person making such Company Takeover Proposal and its Representatives pursuant to a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (ii) participate in discussions and negotiations (including solicitation of a revised Company Takeover Proposal) with such Person and its Representatives regarding any Company Takeover Proposal and (ii) furnish to such Person and its Representatives (including its potential financing sources) any information (including non-public information) related to the Company, and provide access to the Company’s assets, properties and business facilities. Prior to engaging in any such discussions or negotiations with such Person, the Company shall enter into an Acceptable Confidentiality Agreement with such Person in respect of such Company Takeover Proposal. The Company shall provide to Parent Wintrust copies of all nonpublic information (to the extent that such nonpublic information has not been previously provided or Made Availablemade available to Wintrust) that is made available to any such Person third party before or substantially concurrently with the time it is provided or made available to such Personthird party. The Company shall not furnish any nonpublic information or participate in any discussions or negotiations with any Person pursuant to this Section 5.02(c4.8(c) unless the Company notifies Parent Wintrust in writing of its intention to take such action, promptly after the Company Board resolves to take such action, which notice shall include the identity of such Person, a true and complete copy of the most current version of any applicable unsolicited request or Company Takeover Proposal (including any proposed agreement or other offer documents) and a true and complete copy of such Acceptable Confidentiality Agreement; provided, however, the identity applicable confidentiality agreement. The Company shall keep Wintrust promptly advised of such Person need not be disclosed all material developments (including all changes to Parent if providing such information would violate the material terms of a confidentiality agreement in effect prior to the date of this Agreement. The terms and existence of any such unsolicited request Company Takeover Proposal), discussions or negotiations regarding any Company Takeover Proposal shall be subject to and the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreementstatus of such Company Takeover Proposal.