Common use of Limitations on Solicitation Clause in Contracts

Limitations on Solicitation. (a) Subject to Section 5.3(b) and Section 5.3(d): (i) The Company shall not, shall cause its officers, directors and Subsidiaries not to, and shall not authorize its Representatives to initiate, solicit or knowingly encourage or knowingly facilitate the submission of any Takeover Proposal, or engage in negotiations with respect thereto. (ii) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other similar agreement providing for a Takeover Proposal. (b) Notwithstanding anything to the contrary contained in this Section 5.3, if prior to obtaining the Requisite Stockholder Vote, (i) the Company has received a written Takeover Proposal from a third party that the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to take the actions described in clauses (A) and (B) below could result in a violation of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. (c) Subject to the fiduciary duties of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal; (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent and disclose to Parent the material terms of such Takeover Proposal, request or inquiry. (d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time prior to obtaining the Requisite Stockholder Vote, (A) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that a Takeover Proposal received by the Company constitutes a Superior Proposal, and (B) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that failing to take such action could result in a breach of the fiduciary duties of the Company Board under applicable Law, the Company Board (or the Strategic Alternatives Committee) may (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio, unless in advance of or concurrently with such termination the Company pays the Company Termination Fee as required by Section 7.6(a)(ii) and simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b) and provided, further, that the Company Board may not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio unless the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or the Strategic Alternatives Committee) determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. (f) Nothing contained in this Section 5.3 shall prohibit the Company Board (or the Strategic Alternatives Committee) from (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board (or Strategic Alternatives Committee)) “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act. (g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.

Limitations on Solicitation. The Company shall, and shall cause each Company Subsidiary, and shall instruct the Company Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Third Parties (aother than the Parent Representatives) Subject that may be ongoing as of the date hereof with respect to Section 5.3(b) and Section 5.3(d): (i) a Takeover Proposal. The Company shall not, and shall cause its officers, directors each Company Subsidiary and Subsidiaries shall instruct the Company Representatives not to, and shall not authorize its Representatives to (a) directly or indirectly solicit, initiate, solicit or knowingly encourage or knowingly facilitate the submission of any Takeover Proposal, or engage in negotiations with respect thereto. (iib) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger agreement, letter of intent, agreement or agreement in principle, purchase agreement, option agreement or other similar agreement providing for principle with respect to a Takeover Proposal or (c) engage in any negotiations or discussions regarding, or furnish or disclose to any Third Party any information with respect to, any Takeover Proposal. (b) Notwithstanding anything to the contrary contained in this Section 5.3; provided, if however, that at any time prior to obtaining the Requisite Stockholder VoteShareholder Approval, (i) in response to a bona fide Takeover Proposal received by the Company has received a written Takeover Proposal from a third party after the date hereof that was not solicited in violation of this Section 6.4.1 and that the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counselcounsel and financial advisors) that constitutes, or could reasonably be expected to lead to, a Superior Proposal and after the failure to take the actions described in clauses (A) and (B) below could result in a violation Company gives Parent written notice of its fiduciary duties intention to the stockholders of do so, the Company under applicable Lawmay, then subject to compliance with Section 6.4.2, (x) provide access to its and the Company may (A) Subsidiaries’ properties, Contracts, personnel, books and records and furnish information information, data and/or draft agreements with respect to the Company and its the Company Subsidiaries to the extent Parent, Merger Sub or the Parent Representatives had the right to such access to the Person making such Takeover ProposalProposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) if the Company Board receives from such Person a customary confidentiality agreement and (By) participate, engage or assist in any manner participate in discussions or negotiations with the Person making such Takeover Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. (c) Subject to the fiduciary duties of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal; (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent and disclose to Parent the material terms of such Takeover Proposal, request or inquiry. (d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time prior to obtaining the Requisite Stockholder Vote, (A) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that a Takeover Proposal received by the Company constitutes a Superior Proposal, and (B) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that failing to take such action could result in a breach of the fiduciary duties of the Company Board under applicable Law, the Company Board (or the Strategic Alternatives Committee) may (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio, unless in advance of or concurrently with such termination the Company pays the Company Termination Fee as required by Section 7.6(a)(ii) and simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b) and provided, further, that the Company Board may not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio unless the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or the Strategic Alternatives Committee) determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. (f) Nothing contained in this Section 5.3 shall prohibit the Company Board (or the Strategic Alternatives Committee) from (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board (or Strategic Alternatives Committee)) “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act. (g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.

Limitations on Solicitation. The Company shall, and shall instruct the Company Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Third Parties (aother than the Parent Representatives) Subject that may be ongoing as of the date hereof with respect to Section 5.3(b) and Section 5.3(d): (i) a Takeover Proposal. The Company shall not, and shall cause its officers, directors and Subsidiaries instruct the Company Representatives not to, and shall not authorize its Representatives to (a) directly or indirectly solicit, initiate, solicit or knowingly encourage or knowingly facilitate the submission of any Takeover Proposal, or engage in negotiations with respect thereto. (iib) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger agreement, letter of intent, agreement or agreement in principle, purchase agreement, option agreement or other similar agreement providing for principle with respect to a Takeover Proposal or (c) engage in any negotiations or discussions regarding, or furnish or disclose to any Third Party any information with respect to, any Takeover Proposal. (b) Notwithstanding anything to the contrary contained in this Section 5.3; provided, if however, that at any time prior to obtaining the Requisite Stockholder VoteShareholder Approval, (i) in response to a bona fide Takeover Proposal received by the Company has received a written Takeover Proposal from a third party after the date hereof that was not solicited in violation of this Section 6.4.1 and that the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counselcounsel and financial advisors) that constitutes, or could reasonably be expected to lead to, a Superior Proposal and after the failure to take the actions described in clauses (A) and (B) below could result in a violation Company gives Parent written notice of its fiduciary duties intention to the stockholders of do so, the Company under applicable Lawmay, then the Company may subject to compliance with Section 6.4.2, (Ax) provide access to its properties, Contracts, personnel, books and records and furnish information information, data and/or draft agreements with respect to the Company and its Subsidiaries to the extent Parent, Buyer or the Parent Representatives had the right to such access to the Person making such Takeover ProposalProposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) if the Company Board receives from such Person a customary confidentiality agreement and (By) participate, engage or assist in any manner participate in discussions or negotiations with the Person making such Takeover Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. (c) Subject to the fiduciary duties of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal; (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent and disclose to Parent the material terms of such Takeover Proposal, request or inquiry. (d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time prior to obtaining the Requisite Stockholder Vote, (A) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that a Takeover Proposal received by the Company constitutes a Superior Proposal, and (B) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that failing to take such action could result in a breach of the fiduciary duties of the Company Board under applicable Law, the Company Board (or the Strategic Alternatives Committee) may (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio, unless in advance of or concurrently with such termination the Company pays the Company Termination Fee as required by Section 7.6(a)(ii) and simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b) and provided, further, that the Company Board may not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio unless the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or the Strategic Alternatives Committee) determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. (f) Nothing contained in this Section 5.3 shall prohibit the Company Board (or the Strategic Alternatives Committee) from (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board (or Strategic Alternatives Committee)) “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act. (g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.

Limitations on Solicitation. (a) Subject to Section 5.3(b) and Section 5.3(d): (i) The Company shall not, shall cause its officers, directors and Subsidiaries not to, and shall not authorize its Representatives to initiate, solicit or knowingly encourage or knowingly facilitate the submission of any Takeover Proposal, or engage in negotiations with respect thereto. (ii) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other similar agreement providing for a Takeover Proposal. (b) Notwithstanding anything to the contrary contained in this Section 5.3, if prior to obtaining the Requisite Stockholder VotePurchase Time, (i) the Company has received a written Takeover Proposal from a third party that the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to take the actions described in clauses (A) and (B) below could result in a violation of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. (c) Subject to the fiduciary duties of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal; (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent and disclose to Parent the material terms of such Takeover Proposal, request or inquiry. (d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time prior to obtaining the Requisite Stockholder VotePurchase Time, (A) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that a Takeover Proposal received by the Company constitutes a Superior Proposal, and (B) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that failing to take such action could result in a breach of the fiduciary duties of the Company Board under applicable Law, the Company Board (or the Strategic Alternatives Committee) may (x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio, unless in advance of or concurrently with such termination the Company pays the Company Termination Fee as required by Section 7.6(a)(ii) and simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b7.4(c) and provided, further, that the Company Board may not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause (y) and any such purported termination shall be void ab initio unless the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or the Strategic Alternatives Committee) determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. (f) Nothing contained in this Section 5.3 shall prohibit the Company Board (or the Strategic Alternatives Committee) from (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board (or Strategic Alternatives Committee)Board) “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act. (g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.

Limitations on Solicitation. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 5:00 p.m., New York City time, on July 19, 2007 (the “Solicitation Period End-Time”), the Company and its Representatives shall have the right (acting under the direction of the Special Committee, if in existence, and otherwise under the direction of the Company Board) to directly or indirectly: (i) initiate, solicit and encourage, whether publicly or otherwise, Takeover Proposals, including by way of providing access to non-public information (but only pursuant to one or more Acceptable Confidentiality Agreements); provided that the Company shall promptly provide to Parent any non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or Merger Sub; and (ii) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any such discussions or negotiations or the making of any Takeover Proposal. (b) Subject to Section 5.3(b5.3(c) and Section 5.3(d5.3(e): (i) The Company shall not, and shall cause its officers, directors Subsidiaries and Subsidiaries Representatives not to, and shall not authorize its Representatives to initiatedirectly or indirectly, solicit or knowingly encourage or knowingly facilitate from the submission of any Takeover ProposalSolicitation Period End-Time until the Effective Time, or engage in negotiations with respect thereto. (ii) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other similar agreement providing for relating to a Takeover Proposal, or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or to breach its obligations hereunder or resolve, propose or agree to do any of the foregoing. (bii) Except with respect to any written Takeover Proposal received after the date hereof and prior to the Solicitation Period End-Time with respect to which the requirements of Sections 5.3(c)(i) and 5.3(c)(ii) have been satisfied as of the Solicitation Period End-Time and thereafter (any Person so submitting such a Takeover Proposal and any group that includes any such Person, so long as such Person and the other members of such group, if any, who were members of such group immediately prior to the Solicitation Period End-Time include the lead investor in such group and constitute at least 50% of the equity financing of such group at all times following the Solicitation Period End-Time, an “Excluded Party”), the Company shall not and shall cause its Subsidiaries and Representatives not to, directly or indirectly, from the Solicitation Period End-Time until the Effective Date, initiate, solicit or encourage (including by way of providing information) the submission of any inquiries, proposals or offers that constitute or may reasonably be expected to lead to, any Takeover Proposal, or engage in any discussions or negotiations with respect thereto, or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations. Notwithstanding anything contained in this Section 5.3 to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Takeover Proposal made by such Person fails to satisfy the requirements of Sections 5.3(c)(i) or 5.3(c)(ii), but in any event at the Excluded Party Period End-Time. (iii) Except as permitted with respect to an Excluded Party pursuant to Section 5.3(a) or Section 5.3(b)(ii), upon the Solicitation Period End-Time, the Company shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person conducted theretofore by the Company, its Subsidiaries or any of their respective Representatives with respect to any actual or potential Takeover Proposal and request that all confidential information provided by or on behalf of the Company or any of its Subsidiaries to such Person be returned or destroyed. (c) Notwithstanding anything to the contrary contained in Section 5.3(b), but subject to Section 5.3(a) and the last sentence of this Section 5.3paragraph, if at any time following the Solicitation Period End-Time and prior to obtaining the Requisite Stockholder Vote, (i) the Company has received a written Takeover Proposal from a third party that the Company Board (or acting through the Strategic Alternatives Special Committee, if in existence) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or acting through the Strategic Alternatives Special Committee, if in existence) determines in good faith (faith, after consultation with its financial advisor advisors and outside legal counsel) , that such Takeover Proposal constitutes or is would reasonably be expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to take the actions described in clauses (A) and (B) below could result in a violation of its fiduciary duties to the stockholders Superior Proposal and (iii) such Takeover Proposal is not a result of the Company under applicable LawCompany’s or its Representative’s intentional breach of this Section 5.3, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, provided that the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement an Acceptable Confidentiality Agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to ParentPerson, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent.. Notwithstanding anything to the contrary contained in Section 5.3(b) or this Section 5.3(c), prior to obtaining the Requisite Stockholder Vote, the Company shall be permitted to take the actions described in Section 5.3(a) and clauses (A) and (B) above with respect to any Excluded Party so long as it remains an Excluded Party, including with respect to any amended proposal submitted by such Excluded Party following the Solicitation Period End-Time that continues to satisfy the requirements of Sections 5.3(c)(i) and 5.3(c)(ii), and the restrictions in this Section 5.3(c) shall not apply with respect thereto. Table of Contents (cd) Subject to Within 48 hours after the fiduciary duties Solicitation Period End-Time, the Company shall notify Parent of the identity of all Excluded Parties, if any, and provide Parent a copy of each Takeover Proposal received from any Excluded Party (or, where no such copy is available, a written description of such Takeover Proposal). From and after the Solicitation Period End-Time, the Company Board, shall promptly (and in any event within 48 hours) notify Parent in the event that the Company or any of its Subsidiaries or Representatives receives: (i) any Takeover Proposal or indication by any bona fide proposal Person that it is considering making a Takeover Proposal or offer proposals or offers with respect to a Takeover Proposal; , (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning other than requests for information in the ordinary course of business and unrelated to a Takeover Proposal; , or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the . The Company shall promptly, but promptly (and in no any event later than two (2within 48 hours) Business Days thereafter, notify Parent of the identity of such Person and disclose provide to Parent the material terms a copy of such Takeover Proposal, inquiry or request (or, where no such copy is available, a written description of such Takeover Proposal, inquiry or inquiryrequest), including any material modification to any Takeover Proposal. The Company shall keep Parent reasonably informed (orally and in writing) on a prompt basis (and in any event within 48 hours) of the status of any such Takeover Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto). Without limiting the foregoing, from and after the Solicitation Period End-Time, the Company shall promptly (and in any event within 48 hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.3(c). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide information to Parent as required by Section 5.3(a), Section 5.3(c) or this Section 5.3(d). Except to the extent necessary to take any actions that the Company is otherwise permitted to take pursuant to this Section 5.3 (and in such case only in accordance with the terms of this Section 5.3), the Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement. (de) Notwithstanding anything in Section 5.3(a)(ii5.3(b)(i) to the contrary, if at any time prior to obtaining the Requisite Stockholder Vote, (Ai) (x) the Company Board (or acting through the Strategic Alternatives Special Committee, if in existence) determines in good faith (faith, after consultation with outside legal counsel and its financial advisor and outside legal counsel) advisors, that a bona fide written Takeover Proposal received by the Company constitutes a Superior Proposal, and (By) the Company Board (or acting through the Strategic Alternatives Special Committee, if in existence) determines in good faith (faith, after consultation with its outside legal counsel) counsel and its financial advisor, that failing to take such action could would be inconsistent with the fiduciary duties of the Company Board under applicable Law and (z) such Takeover Proposal is not a result in a of the Company’s or its Representative’s intentional breach of Section 5.3, or (ii) in the absence of a Takeover Proposal, the Company Board (acting through the Special Committee, if in existence) determines in good faith, after consultation with outside legal counsel and its financial advisor, that failing to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, the Company Board (or acting through the Strategic Alternatives Special Committee, if in existence) may (xI) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation Change”), and/or (yII) in the case of clause (i) above, cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) II), and any such purported termination pursuant to the foregoing clause (II) shall be void ab initioand of no force or effect, unless in advance of or concurrently with such termination the Company (1) pays the Company Termination Fee as required by Section 7.6(a)(ii) and (2) simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b) ); and provided, further, further that the Company Board (acting through the Special Committee, if then in existence) may not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause (yII) and unless (A) if the basis for such Recommendation Change or termination of this Agreement is a Superior Proposal from any such purported termination shall be void ab initio unless Person other than an Excluded Party, the Company shall have provided prior written notice to Parent, at least three complied with clauses (3i) Business Days in advance and (ii) below and (B) if the “Notice Period”), basis for such Recommendation Change or termination of its intention to take such action with respect to such this Agreement is a Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice PeriodProposal from any Excluded Party, the Company shall, and shall cause its Representatives to, negotiate have complied with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or the Strategic Alternatives Committee) determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. (f) Nothing contained in this Section 5.3 shall prohibit the Company Board (or the Strategic Alternatives Committee) from clause (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii) making any required (based on the good faith determination of the Company Board (or Strategic Alternatives Committee)) “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act. (g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement.below:

Limitations on Solicitation. (a) Subject to Section 5.3(b) and From the date of this Agreement until the Effective Time, except as specifically permitted in Section 5.3(d):), the Company agrees that neither it nor any of its Subsidiaries nor any of the officers or directors of it or any of its Subsidiaries shall, and that it shall cause its and its Subsidiaries’ Representatives not to, directly or indirectly: (i) The Company shall not, shall cause its officers, directors and Subsidiaries not to, and shall not authorize its Representatives to initiate, solicit or knowingly encourage (including by way of providing non-public information) or knowingly facilitate any inquiries, proposals or offers with respect to, or the submission of any making, or the completion of, a Takeover Proposal, or engage in negotiations with respect thereto.; (ii) The participate or engage in any discussions or negotiations with, or furnish or disclose any non-public information relating to the Company shall not, shall cause or any of its officers, directors, and Subsidiaries not to, and shall not authorize its Representatives to approve or recommendotherwise knowingly cooperate with or assist, or publicly propose to approve or recommend, any Person in connection with a Takeover Proposal; (iii) withdraw, modify or effect a Recommendation Changeamend the Company Board Recommendation; (iv) approve, endorse or recommend any Takeover Proposal; (v) enter into any merger agreement, letter of intent, agreement in principle, purchase merger agreement, acquisition agreement, option agreement or other similar agreement providing for or arrangement relating to a Takeover Proposal; or (vi) agree to do any of the foregoing. (b) Notwithstanding anything The Company shall, and shall cause each of its Subsidiaries and Representatives to, immediately cease any solicitations, discussions or negotiations relating to a Takeover Proposal with any Person (other than the contrary contained in parties hereto) that has made, or indicated an intention to make, a Takeover Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3, if prior to obtaining the Requisite Stockholder Vote, (i) the Company has received a written Takeover Proposal from a third party that the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially breached this Section 5.3, (iii) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that the failure to take the actions described in clauses (A) and (B) below could result in a violation of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, the Company (x) will not, and will not allow its Subsidiaries or authorize its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement with such Person that contains confidentiality provisions that are not materially less restrictive in the aggregate to such Person than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. (c) Subject to the fiduciary duties The Company shall notify Parent promptly upon receipt by it or its Subsidiaries or Representatives of the Company Board, in the event the Company receives: (i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal; , (ii) any request for non-public information relating to the Company or any of its Subsidiaries concerning other than requests for information in the ordinary course of business and unrelated to a Takeover Proposal; Proposal or (iii) any bona fide inquiry or request for discussions or negotiations regarding any Takeover Proposal, the . The Company shall promptly, but in no event later than two (2) Business Days thereafter, notify Parent promptly with the identity of such Person and disclose to Parent the material terms a copy of such Takeover Proposal, indication, inquiry or request (or, where no such copy is available, a written description of the consideration and material other terms and conditions of such Takeover Proposal, indication, inquiry or inquiryrequest), including any modification or change to the proposed consideration or any material other modifications thereto. The Company shall keep Parent reasonably informed on a current basis of the occurrence of any material changes, developments, discussions or negotiations relating to the status of any such Takeover Proposal, indication, inquiry or request (including the consideration and material other terms and conditions thereof and of any modification or change to the proposed consideration or any material other modifications thereto), including furnishing copies of any written revised proposals. Without limiting the foregoing, the Company shall promptly notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Takeover Proposal pursuant to Section 5.3(d). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that prohibits the Company from providing such information to Parent, and neither the Company nor any of its Subsidiaries is party to any agreement that prohibits the Company from providing such information to Parent. (d) Notwithstanding anything the foregoing, if the Company has otherwise complied with its obligations under this Section 5.3, but only prior to the satisfaction of the condition set forth in Section 5.3(a)(ii6.1(a), the Company shall be permitted to: (i) to engage in discussions or negotiations with any Person or group of related Persons that makes a written Takeover Proposal after the contrarydate of this Agreement not solicited in violation of this Section 5.3, if at any time prior to obtaining the Requisite Stockholder Vote, (A) which the Company Board (or acting through the Strategic Alternatives Negotiation Committee, if then in existence) determines has determined in its good faith (after judgment, following consultation with its financial advisor a Company Financial Advisor and outside legal counsel) that a Takeover Proposal received by the Company constitutes a Superior Proposal, and (B) the Company Board (or the Strategic Alternatives Committee) determines in good faith (after consultation with its outside legal counsel) that failing could reasonably be expected to take such action could result in a breach Superior Proposal if, prior to taking such action, such Person or group of the fiduciary duties of related Persons enters into an Acceptable Confidentiality Agreement; (ii) furnish or disclose any non-public information relating to the Company Board under applicable Lawor any of its Subsidiaries to any Person or group of related Persons who has made a written Takeover Proposal after the date of this Agreement not solicited in violation of this Section 5.3 if, prior to taking such action, the Company Board (or acting through the Strategic Alternatives Negotiation Committee, if then in existence) may determines in its good faith judgment, following consultation with a Company Financial Advisor and its outside legal counsel, that such Takeover Proposal could reasonably be expected to result in a Superior Proposal, but only so long as the Company concurrently discloses the same such non-public information to Parent if such non-public information has not previously been disclosed to Parent; (xiii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, amend the Company Board Recommendation in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or propose publicly to recommend or endorse, any Takeover Proposal and MergerCo (a “Recommendation Change”), and/or if the Company Board (acting upon the recommendation of the Negotiation Committee, if then in existence) has determined in its good faith judgment, following consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws; provided that if such action is in response to or relates to a Takeover Proposal, then the Recommendation Change shall be taken only in compliance with Section 5.3(d)(iv) and not in compliance with this Section 5.3(d)(iii). (iv) in response to a Takeover Proposal not solicited in violation of this Section 5.3 which the Company Board (acting upon the recommendation of the Negotiation Committee, if then in existence) has determined in its good faith judgment, following consultation with a Company Financial Advisor and outside legal counsel, constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by Parent and MergerCo pursuant to the provisos to this paragraph, (x) effect a Recommendation Change or (y) cause the Company to terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant such termination to the foregoing clause (y) and any such purported termination shall be void ab initio, unless effective only if in advance of or concurrently with such termination the Company pays the Company Termination Fee as required by in the manner provided for in Section 7.6(a)(ii) and simultaneously with such termination enters into an acquisition agreement, merger agreement or similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this Agreement in compliance with Section 7.4(b) and provided, further, 7.6(a); provided that the Company Board may (acting upon the recommendation of the Negotiation Committee, if then in existence) shall not make a Recommendation Change or terminate this Agreement pursuant to the foregoing clause unless: (y1) and any such purported termination shall be void ab initio unless the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, and the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and necessary amendments to the terms of this Agreement) in response to any such written notice by the Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notice by the Company and a new three (3) Business Day period). (e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or modify any material provision of any standstill or confidentiality agreement to which it is a party that relates to a transaction of a type described in the definition of Takeover Proposal; provided, however¸ that the Company may permit to be taken any of the actions prohibited under a standstill agreement if the Company Board (or acting upon the Strategic Alternatives recommendation of the Negotiation Committee, if then in existence) determines has determined in its good faithfaith judgment, after following consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties obligations to the stockholders of the Company under applicable LawLaws, (2) the Company shall have given Parent and MergerCo prompt written notice advising Parent and MergerCo of (A) the decision of the Company Board (acting through the Negotiation Committee, if then in existence) to take such action and (B) the consideration and material other terms and conditions of the Takeover Proposal, including the identity of the party making such Takeover Proposal and copies of any relevant proposed transaction agreements with such party and other material documents, (3) the Company shall have given Parent and MergerCo five (5) Business Days (or three (3) Business Days in the event of each subsequent modification or change to the proposed consideration or material other revision to such Takeover Proposal) after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal), and (4) at the end of such period, the Company Board (acting through the Negotiation Committee, if then in existence) shall have determined in good faith, after giving effect to the revisions or other proposals made by Parent and MergerCo, if any, that (A) following consultation with outside legal counsel, in the case of a Recommendation Change, failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws and (B) following consultation with the Company Financial Advisor and outside legal counsel, in the case of a termination of this Agreement, such Takeover Proposal remains a Superior Proposal relative to the Merger, as supplemented by any revisions or counterproposals made by Parent and MergerCo; provided that in the event the Company Board (acting through the Negotiation Committee, if then in existence) does not make the determination referred to in clause (4) of this paragraph but thereafter determines to effect a Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(iv), the procedures referred to in clauses (1) – (4) above shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification. (fe) Nothing contained in this Section 5.3 5.3(d) shall not prohibit the Company Board (or the Strategic Alternatives Committee) from (i) complying with its disclosure obligations under United States federal or state Law with regard to a Takeover Proposal, including taking and disclosing to the stockholders of the Company a position with respect to any tender or exchange offer contemplated by a third party pursuant to Rule 14e-2(a) or and Rule 14d-9 promulgated under the Exchange Act (with regard to a tender or any similar communication to stockholders) exchange offer; or (ii) making any required (based on the good faith determination of other disclosure that the Company Board or the Negotiation Committee (or Strategic Alternatives Committee)after consultation with outside legal counsel) determines in its good faith judgment is required under the Company’s disclosure obligations under applicable Law; provided, however, that any disclosure other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange ActAct shall be a Recommendation Change unless the Company Board expressly (x) reaffirms its recommendation to its stockholders in favor of adoption of this Agreement or (y) rejects such other Takeover Proposal. (gf) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective Affiliates) from the restrictions on “business combinations” contained in Section 203 of the DGCL (or any similar provisions of any other Lawprovisions) or otherwise cause such restrictions not to apply apply; in each case, unless such actions are taken simultaneously with a termination of this AgreementAgreement in accordance with its terms. (g) Any withdrawal, modification or amendment by the Negotiation Committee of its recommendation that forms a part of the Company Board Recommendation in any manner adverse to Parent and MergerCo or that is inconsistent with the Company Board Recommendation, and any approval, endorsement or recommendation by the Negotiation Committee of any Takeover Proposal, and any resolution or announcement of an intention of the Negotiation Committee with respect to any of the foregoing, shall be deemed and treated for all purposes of this Agreement as if such action were taken by the Company Board with respect to the Company Board Recommendation or any such Takeover Proposal, as applicable.