Common use of No Solicitation; Board Recommendation Clause in Contracts

No Solicitation; Board Recommendation. (a) The Company will not, and will use its best efforts to ensure that its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; provided however, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Board of Directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board of Directors after receiving advice from outside counsel, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of Directors, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to the Purchaser any nonpublic information regarding the Company provided to any other party which was not previously provided to the Purchaser. If the Company, after consultation with outside legal counsel, believes that a breach of its fiduciary duties to the Company's stockholders would likely occur, the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to the Purchaser the Termination Fee (as defined in Section 8.2(b) hereof). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover Proposal.

No Solicitation; Board Recommendation. (a) The From and after the date of this Agreement until the earlier to occur of the Acceptance Time and the termination of this Agreement in accordance with Article X, and except as otherwise specifically provided for in this Agreement, the Company will shall not, and will shall cause its Subsidiaries not to, and shall use its reasonable best efforts to ensure that cause its officers, directors, employees, investment bankers, attorneys, accountants Employees and other agents do notRepresentatives not to (including by directing them not to), directly or indirectly: , (i) initiatecontinue any solicitation, solicit knowing encouragement, discussions or encourage, or take negotiations with any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead Person that may be ongoing with respect to any Takeover Company Acquisition Proposal, (ii) enter into solicit, initiate or knowingly encourage any agreement with respect inquiry, proposal or offer which constitutes, or could reasonably be expected to any Takeover lead to, a Company Acquisition Proposal, or (iii) participate in the event of an unsolicited Takeover Proposal for the Company engage in any discussions or negotiations or discussions withregarding, or provide any information or data to, furnish to any Person (other than Parent, its Affiliates and their respective Representatives) any nonpublic information relating to the PurchaserCompany and its Subsidiaries, in connection with any inquiry, proposal or offer which constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, (iv) approve or recommend, or make any public statement approving or recommending, any inquiry, proposal or offer which constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, (v) enter into any letter of its affiliates intent, merger agreement or representatives and except other similar agreement regarding or providing for information a Company Acquisition Proposal or any proposal or offer which has been previously publicly disseminated could reasonably be expected to lead to a Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in compliance with this Section 8.2) (each an “Alternative Acquisition Agreement”), (vi) submit any Company Acquisition Proposal to a vote of the stockholders of the Company or (vii) resolve or agree to do any of the foregoing. The Company agrees that in the event any Representative of the Company takes any action which, if taken by the Company) relating to any Takeover Proposal; provided however, that nothing contained in would constitute a breach of this Section 5.3 or any other provision hereof shall prohibit the Company or the Board of Directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board of Directors after receiving advice from outside counsel8.2, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under applicable lawshall be deemed in breach of this Section 8.2. (b) Notwithstanding the foregoingIf, prior to the acceptance of Shares pursuant to the OfferAcceptance Time, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, receives an unsolicited bona fide written Company Acquisition Proposal that was made after the date of this Agreement and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from consultation with the Company’s outside financial advisors and outside legal counsel, (i) is or could reasonably be expected to lead to a nationally recognized investment banking firmSuperior Proposal and (ii) failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, is more favorable then the Company may, in response to such Company Acquisition Proposal, furnish nonpublic information relating to the Company and its stockholders than Subsidiaries to the Offer Person or group (or any of their Representatives) making such Company Acquisition Proposal and engage in discussions or negotiations with such Person or group and their Representatives regarding such Company Acquisition Proposal; provided that (x) prior to furnishing any nonpublic information relating to the Company and its Subsidiaries to such Person or group or their respective Representatives, the Company gives written notice to Parent after any such determination by the Company Board and enters into an Acceptable Confidentiality Agreement with the Person or group making such Company Acquisition Proposal (and the Merger (taking into account all relevant factors) and which information is not conditioned upon obtaining additional financing not fully committed at furnished pursuant to such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditionsAcceptable Confidentiality Agreement), and (y) the Company promptly (but not more than 24 hours) after furnishing any such nonpublic information to such Person, furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished to Parent or its Representatives). Notwithstanding anything to the contrary contained in this Agreement, the opinion Company and its Subsidiaries and the Company’s Representatives may in any event (A) seek to clarify the terms and conditions of any Company Acquisition Proposal solely to determine whether such Company Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (B) inform a Person or group that has made or, to the Board Knowledge of Directors, after receiving advice from outside legal counsel to the Company, is considering making, a Company Acquisition Proposal of the failure provisions of this Section 8.2. In no event may the Company or any of its Subsidiaries or any of their Representatives directly or indirectly reimburse or pay, or agree to reimburse or pay, the fees, costs or expenses of, or provide or agree to provide any compensation to, any Person or Persons (or any of its or their Representatives or potential financing sources) who makes a Company Acquisition Proposal. (c) The Company shall promptly (and in any event within 24 hours) notify Parent after receipt of any Company Acquisition Proposal, any inquiry or proposal that could reasonably be expected to lead to a Company Acquisition Proposal or any inquiry or request for nonpublic information relating to the Company and its Subsidiaries by any Person who has made or could reasonably be expected to make a Company Acquisition Proposal. Such notice shall indicate the identity of the Person making such inquiry or proposal and include a copy of the Company Acquisition Proposal or, if not in writing, a summary of the material terms and conditions of any such proposal or offer or the nature of the information requested pursuant to such inquiry or access or to engage request. Thereafter, the Company shall keep Parent reasonably informed, on a prompt basis (and in such any event within 24 hours), regarding any material developments, discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties regarding any such proposal or offer and any material changes to the Company's stockholders under applicable law status and material terms of any such proposal or offer (a Takeover Proposal which satisfies clauses including any material amendments thereto or any material change to the scope or material terms or conditions thereof). (xd) The Company shall, and shall cause each of its Subsidiaries to, and shall direct its Representatives to, immediately cease any existing discussions or negotiations with any Person (yother than Parent and its Subsidiaries) being referred with respect to herein as a "Superior any potential Company Acquisition Proposal"). The Company shall promptly provide terminate access by any such Person or group to any such physical or electronic data rooms relating to any potential Company Acquisition Proposal. The Company shall promptly after the date hereof request each Person (if any) that has received information from the Company during the past twelve months pursuant to a confidentiality agreement relating to any potential Company Acquisition Proposal to promptly return to the Purchaser any nonpublic information regarding Company or destroy all non-public documents and materials relating to the Company provided to any other party which was not previously provided Acquisition Proposal or to the Purchaser. If Company or its Subsidiaries or its or their businesses, operations or affairs heretofore furnished by the Company, its Subsidiaries or any of its or their Representatives to such Person or group or any of its Representatives in accordance with the terms of such confidentiality agreement, and shall not waive, terminate or modify without Parent’s prior written consent, any standstill or similar provision in any confidentiality, standstill or other agreement with such Person; provided that the Company may waive any standstill or similar provisions to the extent necessary to permit a Person or group to make, on a confidential basis to the Company Board, a Company Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Company Acquisition Proposal to Parent. (e) Subject to this Section 8.2, neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change. Notwithstanding anything to the contrary in this Agreement, but subject to Section 8.2(f), prior to the Acceptance Time, the Company Board may effect a Company Adverse Recommendation Change (and, in the case of a bona fide written Company Acquisition Proposal that was unsolicited after the date of this Agreement and that did not result from a material breach of this Section 8.2, terminate this Agreement pursuant to Section 10.1(d)(ii) and concurrently pay the fees required by Section 10.3 in order to enter into a definitive agreement in connection with a Superior Proposal) if: (i) (A) a Company Acquisition Proposal is made to the Company after the date of this Agreement and such Company Acquisition Proposal is not withdrawn prior to such Company Adverse Recommendation Change or (B) there has been an Intervening Event; (ii) in the case of a Company Acquisition Proposal, the Company Board concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, believes that such Company Acquisition Proposal constitutes a breach Superior Proposal; and (iii) the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Laws. (f) Prior to making any Company Adverse Recommendation Change or entering into any Alternative Acquisition Agreement, (i) the Company Board shall provide Parent at least four Business Days’ prior written notice of its fiduciary duties intention to the Company's stockholders would likely occurtake such action, which notice shall specify, in reasonable detail, the Board reasons therefor and, in the case of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination")Company Acquisition Proposal, but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and proposal, including a copy thereof with all accompanying documentation), identifying of any proposed definitive agreements; (ii) during the Person making four Business Days following such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such written notice, the Company Board and its Representatives shall provide a reasonable opportunity negotiate in good faith with Parent (to the Purchaser extent Parent desires to make negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such adjustments Superior Proposal or Intervening Event, as applicable; and (iii) at the end of the four Business Day period described in the terms and conditions of this Agreement and/or of the Option Agreement as would enable foregoing clause (ii), the Company to proceed Board concludes in good faith, after consultation with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so ’s outside legal counsel and outside financial advisors (and taking into account any legally binding (if accepted by the Company has otherwise complied with Company) adjustment or modification of the terms of this Section 5.3(bAgreement proposed in writing by Parent), that, as applicable (A) the Board of Directors may terminate this Agreement pursuant Company Acquisition Proposal continues to clause (ii) of Section 8.1(f) and enter into an agreement with respect to be a Superior Proposal; provided Proposal or (B) the Intervening Event continues to warrant a Company Adverse Recommendation Change and, in each case, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Laws. The provisions of this Section 8.2(f) shall also apply to any material change to any Company Acquisition Proposal or Intervening Event and require a new written notice, except that the Company shall, concurrently with entering into such agreement, pay or cause references to four Business Days shall be deemed to be paid to the Purchaser the Termination Fee (as defined in Section 8.2(b) hereof). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determinationtwo Business Days. (cg) Except as set forth Nothing contained in this Agreement shall prohibit the Company Board from taking and disclosing to their stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act; provided, however, that this Section 5.3(b), neither 8.2(g) shall not permit the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in effect a manner adverse Company Adverse Recommendation Change except to the Purchaserextent otherwise permitted by this Section 8.2; provided, further, that a request by Parent for the approval or recommendation by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose Company to approve or recommend, any Takeover publicly recommend against a Company Acquisition Proposal or (iii) enter into any agreement may not be made more than once with respect to any Takeover ProposalCompany Acquisition Proposal unless such Company Acquisition Proposal is subsequently materially amended or modified, in which case Parent may make one request each time such Company Acquisition Proposal is so subsequently materially amended or modified. For the avoidance of doubt, any “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not constitute a Company Adverse Recommendation Change so long as any such disclosure does not include a Company Board Recommendation Change.

No Solicitation; Board Recommendation. (a) Notwithstanding anything else in this Agreement, the Company shall not, nor shall it authorize or permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer, or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant, or other advisor or agent or Representative of the Company or any of its Subsidiaries to, directly or indirectly, (1) solicit, initiate, knowingly encourage, or knowingly facilitate any Acquisition Proposal or any inquiry, offer, or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; or (2) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to any Company Acquisition Proposal, or furnish to any Person any information relating to the Company or any of its Subsidiaries or provide access to the properties, books and records or any confidential information or data of the Company or any of its Subsidiaries to any Person with respect to, or otherwise cooperate in any way with any Person regarding, any Acquisition Proposal; provided, however, as to the limitations set forth in (1) and (2), that at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written unsolicited Acquisition Proposal that the Company Board determines in good faith constitutes or could reasonably be expected to lead to a Superior Proposal, and which Acquisition Proposal did not result from a breach of this Section 6.2 or any other provision of this Agreement, the Company may, and may permit and authorize its Representatives and its Subsidiaries and its Subsidiaries' Representatives to, in each case subject to compliance with Section 6.2(c) and the other provisions of this Agreement, (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement which contains terms that are no less restrictive than those contained in the confidentiality agreement between Parent and the Company (as it may be amended from time to time, the "Confidentiality Agreement"); provided that all such information had been provided or made available, or is concurrently provided or made available, to Parent, and (B) participate in discussions or negotiations with, and only with, the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer, or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or agent or Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.2(a) by the Company. (b) Neither the Company Board nor any committee thereof shall (or shall agree or resolve to): (1) withdraw or modify in a manner adverse to Parent or Merger Sub, or propose publicly to withdraw or modify in a manner adverse to Parent or Merger Sub, the recommendation or declaration of advisability by such Company Board or any such committee of this Agreement or the Merger (any such action or any resolution or agreement to take such action being referred to herein as an "Adverse Recommendation Change"), (2) recommend, declare advisable or propose to recommend or declare advisable, the approval or adoption of any Acquisition Proposal or resolve or agree to take any such action, or adopt or approve any Acquisition Proposal or (3) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other agreement (each, an "Acquisition Agreement" constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a Confidentiality Agreement referred to in Section 6.2(a)), or resolve or agree to take any such action; provided, however, at any time prior to the Company Stockholder Approval, the Company Board may, in response to receipt of a Superior Proposal that has not been withdrawn, effect an Adverse Recommendation Change; provided that the Company Board determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to do so is reasonably likely to result in a breach of its fiduciary duties to the stockholders of the Company under applicable Law; and provided, further, that the Company Board may not effect such an Adverse Recommendation Change unless (A) the Company Board shall have first provided prior written notice to Parent (an "Adverse Recommendation Change Notice") that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and (B) Parent does not make, within five (5) Business Days after the receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Company Board (after consultation with a financial advisor of national reputation and outside legal counsel) cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal (it being understood and agreed that any amendment or modification of such Superior Proposal shall require a new Adverse Recommendation Change Notice and a new five (5) Business Day period). The Company will notagrees that, during the five (5) Business Day period prior to its effecting an Adverse Recommendation Change, the Company and will use its best efforts Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to ensure the terms of the Merger and the other transactions contemplated by this Agreement proposed by Parent. (c) In addition to the obligations of the Company set forth in paragraphs Section 6.2(a) and Section 6.2(b) of this Section 6.2, the Company shall, as promptly as possible and in any event within twenty-four (24) hours after the receipt thereof, advise Parent orally and in writing of (1) any Acquisition Proposal or any request for information or inquiry or other communication that the Company reasonably believes could lead to or contemplates an Acquisition Proposal and (2) the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal, request, or inquiry. Commencing upon the provision of any notice referred to above, the Company (or its outside counsel) shall (A) on a daily basis at mutually agreeable times, advise and confer with Parent (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and any other matters identified with reasonable specificity by Parent (or its outside counsel) and the material details (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry and (B) promptly upon receipt or delivery thereof, provide Parent (or its outside counsel) with copies of all documents and material written or electronic communications relating to any such Acquisition Proposal (including the financing thereof), request, or inquiry exchanged between the Company, its Subsidiaries, or any of their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the one hand, and other agents do not, directly the Person making an Acquisition Proposal or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser, any of its affiliates Affiliates, or representatives and except for information which has been previously publicly disseminated by their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the Companyother hand. (d) relating to any Takeover Proposal; provided however, that nothing Nothing contained in this Section 5.3 6.2 or any other provision hereof elsewhere in this Agreement shall prohibit the Company or the Board of Directors from (i) taking and disclosing to the Company's its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules Rule 14d-9 (17 C.F.R. 240.14d-9) and 14e-2 Rule 14e-2(a) (17 C.F.R. 240.14e-2) promulgated under the Exchange Act or (ii) making such any disclosure to the Company's its stockholders asif, in the good faith judgment of the Board of Directors after receiving advice from Company Board, upon consultation with its outside counsel, such disclosure is required by applicable Law; provided, however, that in no event shall the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, or the Company may furnish information concerning its business, properties Board or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of Directors, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to the Purchaser any nonpublic information regarding the Company provided to any other party which was not previously provided to the Purchaser. If the Company, after consultation with outside legal counsel, believes that a breach of its fiduciary duties to the Company's stockholders would likely occur, the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to the Purchaser the Termination Fee (as defined in Section 8.2(b) hereof). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modifytake, or propose agree or resolve to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation take any action prohibited by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover ProposalSection 6.2(b).

No Solicitation; Board Recommendation. (a) The Company will agrees that, during the period beginning on the date of this Agreement and ending on and including September 30, 2002 or the earlier termination of this Agreement pursuant to Article XI, it shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director, employee, investment banker, attorney, accountant, affiliate, agent or other advisor or representative of the Company or any of its Subsidiaries, directly or indirectly, to (and the Company will use its best efforts to ensure that instruct its officers, directors, employees, investment bankers, attorneys, accountants affiliates, accountants, agents and other agents do not, directly or indirectly: advisors and representatives of the Company and each of its Subsidiaries not to) (i) take any action to submit, solicit, initiate, solicit discuss, facilitate or encourageencourage the submission of any Proposal from any Person relating to a sale, lease or encumbrance of all or any material portion of the business or assets of the Company and/or of its Subsidiaries (whether by merger, sale of stock or assets, tender offer or otherwise), or issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any class or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or any such convertible securities, other than to FNIS and/or its Subsidiaries and the issuance of Company Common Shares upon the exercise of presently outstanding vested stock options (which shall be deemed to include the Special Options granted on May 4, 2001 as set forth in Section 4.5 of the Company Disclosure Schedule) or presently outstanding warrants (other than warrants to be terminated as of the Closing as provided for in this Agreement) (collectively, a "Competing Transaction") (ii) engage in any negotiations or discussions regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any Proposal that constitutes, or may be reasonably expected to lead to, any Competing Transaction, (including iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities, (iv) except as required by the furnishing of information) the making ofHSR Act or federal securities laws, any offer or proposal which constitutes or is reasonably likely to lead disclose to any Takeover ProposalPerson other than FNIS and the Company's professional advisors the material terms of the transactions contemplated hereby or of the Letter of Intent by and between FNIS and the Company dated May 15, 2002, or (iiv) other than in the manner contemplated by Section 7.3(d), enter into any agreement with respect to any Takeover Proposalof the foregoing; provided, or (iii) in the event of an unsolicited Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser, any of its affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; provided however, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company may take any actions described in the foregoing clauses (i), (ii), (iii), (iv) or (v) in respect of any Person who makes a Proposal for a Competing Transaction, but only if (x) the Board of Directors from of the Company by a majority vote determines in its good faith judgment, that either (iA) taking such Proposal constitutes a Superior Proposal and disclosing provides written notice of termination of this Agreement in accordance with Section 7.3(d) and Section 11.1, or (B) such Proposal could reasonably be expected to result in a Superior Proposal, and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with the Company on terms no less favorable to the Company's stockholders a position with respect to a tender or exchange offer Company than the Mutual Confidentiality Agreement by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board of Directors after receiving advice from outside counsel, between the Company deems necessary to comply with its fiduciary duties to and FNIS dated as of May 7, 2002 (the Company's stockholders under applicable law"Confidentiality Agreement"). (b) Notwithstanding Unless the foregoingCompany's Board of Directors has previously withdrawn, prior to the acceptance of Shares pursuant to the Offeror is concurrently therewith withdrawing, the Company may furnish Recommendation, neither the Company's Board of Directors nor any committee thereof shall recommend any Superior Proposal to the Company shareholders. (c) Immediately after receipt by the Company or any of its Subsidiaries (or any of their respective directors, officers, agents or advisors) of any Proposal for a Competing Transaction, any contacts concerning, or any request for non-public information concerning or for access to the properties, books or records of the Company or any of its businessSubsidiaries or any request for a waiver or release under any standstill or similar agreement, properties or assets to by any Person pursuant to appropriate confidentiality agreementsthat has made a Proposal for a Competing Transaction or indicates that it is considering making a Proposal for a Competing Transaction, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if notify FNIS (x) such entity or group has on an unsolicited basis submitted that a bona fide written proposal to the Company relating to any such transaction that provides Person may be considering making a Proposal for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditionsCompeting Transaction, and (y) in the opinion of the Board identity of Directorssuch Person and, after receiving advice from outside legal counsel to if a Proposal for a Competing Transaction is made, of the Company, the failure to provide material terms of such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to keep FNIS reasonably informed of the Purchaser status and material terms of any nonpublic information regarding such Proposal. (d) Upon notice and in accordance with the terms of Section 11.1, the Company provided to may terminate this Agreement at any other party which was not previously provided to time before the Purchaser. If Company Shareholder Approval is obtained if (w) the Company's Board of Directors shall have authorized the Company, after consultation with outside legal counsel, believes that a breach of its fiduciary duties subject to the Company's stockholders would likely occurterms and conditions of this Agreement, to enter into a binding agreement concerning a transaction that constitutes a Superior Proposal, (x) the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders Company notifies FNIS that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination")intends to enter into such agreement, but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal agreement, (y) within three Business Days of receiving the notice described in (x) above, FNIS fails to propose and including agree to enter into a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions modification of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), such that the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to the Company determines by a majority vote in its good faith judgment that such Superior Proposal is no longer a Superior Proposal; provided that Proposal and (z) the Company shall, concurrently with entering into such agreement, pay or cause to be paid to pays FNIS the Purchaser the Termination Fee (as defined in fee contemplated by Section 8.2(b) hereof11.3(b). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover Proposal.

No Solicitation; Board Recommendation. (a) The Company will not, and will use its best efforts to ensure that its officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited Takeover Proposal for the Company Company, engage in negotiations or discussions with, or provide any information or data to, any Person (other than the PurchaserPurchasers, any of its affiliates their Affiliates or representatives and except for information which has been previously publicly disseminated by the Company) relating to any Takeover Proposal; provided however, that nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Board of Directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the Board of Directors after receiving advice from outside counsel, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the OfferClosing, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive -------- right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis has, without the Company or any of its officers, directors, employees, investment bankers, attorneys, accountants or other agents having taken any action prohibited by Section 5.3(a) of this Agreement following the date of this Agreement, submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines determines, in good faith, after receiving written advice from a nationally recognized investment banking firmfirm (for purposes hereof, such firms shall include, without limitation, Xxxxxxxx Xxxxx and ING Xxxxxx Xxxxxx Xxxx), is more favorable to the Company and its stockholders than the Offer and the Merger transactions contemplated hereby (taking into account all relevant factors) ), and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of DirectorsBoard, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The ----------------- Company shall within one Business Day following a determination that such Takeover Proposal is a Superior Proposal notify Purchasers of the receipt of the same. The Company shall promptly provide to the Purchaser Purchasers any nonpublic information regarding the Company provided to any other party which was not previously provided to the PurchaserPurchasers. If the Company, after consultation with 's outside legal counsel, believes counsel agrees that a breach of its fiduciary duties to the Company's stockholders duty would likely occur, the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is transactions contemplated hereby are advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day ------------------------ Business Day following the Purchaser's Purchasers' receipt of written notice advising the Purchaser Purchasers that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser Purchasers to make such adjustments in the terms and conditions of this Agreement and/or any of the Option Agreement Transaction Documents as would enable the Company Board to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days Business Days following notification to the Purchaser Purchasers of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f10.1(f) and enter into an agreement with respect to a Superior Proposal; , provided that the Company shall, -------- concurrently with entering into terminating this Agreement pursuant to such agreementclause, pay or cause to be paid to the Purchaser Purchasers the Termination Fee Fee/Expense Reimbursement (as defined in Section 8.2(b10.2(b) hereof). Notwithstanding any other provision of this Agreement, provided that this Agreement has not previously been terminated in accordance with its terms, the Company shall submit this Agreement the Company Voting Matters to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the PurchaserPurchasers, the approval or recommendation by the Board of Directors or any such committee of this Agreement, the Offerother Company Transaction Documents, the transactions contemplated hereby and thereby and the Company Voting Matters (as defined in Section 6.3 of this Agreement or the MergerAgreement), (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover Proposal. (d) Nothing contained in this Section 5.3 shall prohibit the Company ----------- or the Board from (i) taking, and disclosing to the Company's stockholders, a position with respect to a Takeover Proposal pursuant to Rules 14d-9 and 14e- 2(a) under the Exchange Act or (ii) making any disclosure to the Company's stockholders that the Board determines, in good faith and upon exercise of its reasonable judgment after consultation with its financial advisors and outside legal counsel, that the failure to so disclose would be reasonably likely to result in a breach of the fiduciary duties of the Board under applicable law.

No Solicitation; Board Recommendation. (a) The Company will Notwithstanding anything else in this Agreement, each of EVI and MTI shall not, nor shall either authorize or permit any of its Subsidiaries to, nor shall either authorize or permit any of its directors, officers or employees or any of its Subsidiaries or any investment banker, attorney, accountant, or other advisor or agent or Representative of it or any of its Subsidiaries to, directly or indirectly, (1) solicit, initiate, knowingly encourage, or knowingly facilitate any Acquisition Proposal or any inquiry, offer, or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; or (2) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to any Acquisition Proposal, or furnish to any Person any information relating to it or any of its Subsidiaries or provide access to its or any of its Subsidiaries’ properties, books and will use records, confidential information, or data to any Person with respect to, or otherwise cooperate in any way with any Person regarding, any Acquisition Proposal; provided, however, as to the limitations set forth in (1) and (2), that at any time prior to obtaining the EVI Stockholder Approval or the MTI Stockholder Approval, as applicable, in response to a bona fide written unsolicited Acquisition Proposal that the EVI Board or the MTI Board, as applicable, determines in good faith constitutes or could reasonably be expected to lead to an EVI Superior Proposal or MTI Superior Proposal, as applicable, and which Acquisition Proposal did not result from a breach of this Section 7.2 or any other provision of this Agreement, EVI or MTI may, and may permit and authorize its best efforts Representatives and its Subsidiaries and its Subsidiaries’ Representatives to, in each case subject to ensure compliance with Section 7.2(c) and the other provisions of this Agreement, (A) furnish information with respect to it and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement which contains terms that are no less restrictive than those contained in the confidentiality agreement between MTI and EVI as contained in the Letter of Intent dated November 19, 2021 (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information had been provided or made available, or is concurrently provided or made available, to the other Parties, and (B) participate in discussions or negotiations with, and only with, the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by (x) any director, officer, or employee of EVI or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or agent or Representative of EVI or any of its Subsidiaries shall be deemed to be a breach of this Section 7.2(a) by EVI and (y) any director, officer, or employee of MTI or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or agent or Representative of MTI or any of its Subsidiaries shall be deemed to be a breach of this Section 7.2(a) by MTI. (b) Neither the EVI Board, the MTI Board, nor any committee of either shall (or shall agree or resolve to): (1) withdraw or modify in a manner adverse to Parent or, Merger Sub E or Merger Sub M, as applicable, or propose publicly to withdraw or modify in a manner adverse to Parent or, Merger Sub E or Merger Sub M, as applicable, the recommendation or declaration of advisability by such board of directors or any such committee of this Agreement or the EVI Merger or MTI Merger, as applicable (any such action or any resolution or agreement to take such action being referred to herein as an “Adverse Recommendation Change”), (2) recommend, declare advisable or propose to recommend or declare advisable, the approval or adoption of any Acquisition Proposal or resolve or agree to take any such action, or adopt or approve any Acquisition Proposal, or (3) cause or permit EVI or MTI to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other agreement (each, an “Acquisition Agreement” constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a Confidentiality Agreement referred to in Section 7.2(a)), or resolve or agree to take any such action; provided, however, at any time prior to the EVI Stockholder Approval or the MTI Stockholder Approval, as applicable, the EVI Board or the MTI Board may, in response to receipt of an EVI Superior Proposal or MTI Superior Proposal, as applicable, that has not been withdrawn, effect an Adverse Recommendation Change; provided that the EVI Board or the MTI Board determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to do so is reasonably likely to result in a breach of its fiduciary duties to its stockholders under applicable Law; and provided, further, that neither the EVI Board or the MTI Board may effect such an Adverse Recommendation Change unless (A) it shall have first provided prior written notice to each other Party (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to an EVI Superior Proposal or MTI Superior Proposal, as applicable, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such EVI Superior Proposal or MTI Superior Proposal, as applicable, and (B) no other Party makes, within five (5) Business Days after the receipt of such notice, a proposal that would, in the reasonable good faith judgment of the EVI Board or MTI Board, as applicable (after consultation with a financial advisor of national reputation and outside legal counsel), cause the offer previously constituting an EVI Superior Proposal or MTI Superior Proposal, as applicable, to no longer constitute an EVI Superior Proposal or MTI Superior Proposal, as applicable (it being understood and agreed that any amendment or modification of such EVI Superior Proposal or MTI Superior Proposal, as applicable, shall require a new Adverse Recommendation Change Notice and a new five (5) Business Day period). Each of EVI and MTI agrees that, during the five (5) Business Day period prior to its effecting an Adverse Recommendation Change, it and its Representatives shall negotiate in good faith with the other Parties and their Representatives regarding any revisions to the terms of the EVI Merger or the MTI Merger and the other transactions contemplated by this Agreement. (c) In addition to the obligations of EVI and MTI set forth in paragraphs Section 7.2(a) and Section 7.2(b) of this Section 7.2, each of EVI and MTI shall, as promptly as possible and in any event within twenty-four (24) hours after the receipt thereof, advise the other Parties orally and in writing of (1) any Acquisition Proposal or any request for information or inquiry or other communication that it reasonably believes could lead to or contemplates an Acquisition Proposal and (2) the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal, request, or inquiry. Commencing upon the provision of any notice referred to above, the Party providing such notice (or its outside counsel) shall (A) on a daily basis at mutually agreeable times, advise and confer with each other Party (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and any other matters identified with reasonable specificity by any such Party (or its outside counsel) and the material details (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry and (B) promptly upon receipt or delivery thereof, provide each other Party (or its outside counsel) with copies of all documents and material written or electronic communications relating to any such Acquisition Proposal (including the financing thereof), request, or inquiry exchanged between EVI or MTI, as applicable, their Subsidiaries, or any of their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the one hand, and other agents do not, directly the Person making an Acquisition Proposal or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser, any of its affiliates Affiliates, or representatives and except for information which has been previously publicly disseminated by their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the Companyother hand. (d) relating to any Takeover Proposal; provided however, that nothing Nothing contained in this Section 5.3 7.2 or any other provision hereof elsewhere in this Agreement shall prohibit the Company EVI or the Board of Directors MTI from (i) taking and disclosing to the Company's its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules Rule 14d-9 (17 C.F.R. 240.14d-9) and 14e-2 Rule 14e-2(a) (17 C.F.R. 240.14e-2) promulgated under the Exchange Act or (ii) making such any disclosure to the Company's its stockholders asif, in the good faith judgment of the EVI Board of Directors after receiving advice from or MTI Board, upon consultation with its outside counsel, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under such disclosure is required by applicable law. (b) Notwithstanding the foregoingLaw; provided, prior to the acceptance of Shares pursuant to the Offerhowever, that in no event shall EVI, MTI, the Company may furnish information concerning its businessEVI Board, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity MTI Board or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of Directors, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to the Purchaser any nonpublic information regarding the Company provided to any other party which was not previously provided to the Purchaser. If the Company, after consultation with outside legal counsel, believes that a breach of its fiduciary duties to the Company's stockholders would likely occur, the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to the Purchaser the Termination Fee (as defined in Section 8.2(b) hereof). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modifytake, or propose agree or resolve to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation take any action prohibited by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover ProposalSection 7.2(b).

No Solicitation; Board Recommendation. (a) The Company will Seller Parent shall not, and will use its best efforts to ensure that its officersshall cause the other Seller Parties and their respective Affiliates not to, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly: (i) initiatedirectly or indirectly solicit, solicit initiate or knowingly encourage, induce or take any action to facilitate (including by the way of furnishing of nonpublic information) the making of), any offer Competing Proposal or any inquiry or proposal which constitutes or is that could reasonably likely be expected to lead to any Takeover a Competing Proposal, in each case, except for this Agreement and the Transactions, (ii) enter into directly or indirectly engage in, continue or otherwise participate in any agreement discussions or negotiations with any Person (except for Purchaser and its Affiliates) regarding, or furnish to any such Person, any nonpublic information with respect to, or afford access to properties, books or records to any Takeover Person in connection with or for the purpose of soliciting or knowingly encouraging or facilitating, or cooperate in any way with any such Person with respect to, any Competing Proposal or any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its shareholders) that constitutes or could reasonably be expected to lead to a Competing Proposal, or (iii) grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement in respect of a proposed Competing Proposal, unless the Seller Parent Board of Directors concludes in good faith (after consultation with outside legal counsel) that a failure to take any action described in this clause (iii) would be inconsistent with the Board’s fiduciary duties to Seller Parent stockholders under applicable Law. Seller Parent shall, and shall cause the other Seller Parties and their respective Affiliates to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person (except for Purchaser and its Affiliates) conducted heretofore with respect to any Competing Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person. Notwithstanding anything to the contrary herein, at any time prior to obtaining the CDR Stockholder Approval (but not after), in response to the receipt of a written Competing Proposal made after the date of this Agreement that does not result from a breach of this Section 5.10(a) by a Seller Party or Affiliate of a Seller Party) that the Seller Parent Board of Directors determines in good faith (after consultation with outside legal counsel and its financial advisor) constitutes or would reasonably be expected to lead to a Superior Proposal, then Sellers may (1) furnish information with respect to the Acquired Properties and Acquired Interests to the Person making such Competing Proposal pursuant to a customary confidentiality agreement, and (2) participate in discussions regarding the terms of such Competing Proposal, including terms of a definitive agreement with respect thereto, and the negotiation of such terms with the Person making such Competing Proposal. (b) Except as set forth in Section 5.10(c), neither the Seller Parent Board of Directors nor any committee thereof shall (i) withdraw, change, qualify, withhold or modify in any manner adverse to Purchaser, or propose publicly to withdraw, change, qualify, withhold or modify in any manner adverse to Purchaser, the approval of this Agreement or the Seller Parent Board Recommendation; (ii) adopt, approve, endorse or recommend, or resolve to or publicly propose or announce its intention to adopt, approve, endorse or recommend, any Competing Proposal; (iii) fail to include the Seller Parent Board Recommendation in the event Proxy Statement; or (iv) take any action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action in the foregoing clauses (i)–(iv) being referred to as an unsolicited Takeover Proposal for “Adverse Recommendation Change”). Except as set forth in Section 5.10(c), neither the Company engage in negotiations Seller Parent Board of Directors nor any committee thereof shall authorize, permit, approve or discussions withrecommend, or provide propose publicly to authorize, permit, approve or recommend, or allow Seller Parent or any information of its Affiliates to execute or data enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be expected to lead to, any Superior Proposal (an “Alternative Acquisition Agreement”). (c) Notwithstanding anything to the contrary herein, at any time prior to obtaining the CDR Stockholder Approval, the Seller Parent Board of Directors may make an Adverse Recommendation Change or cause the Seller Parties to terminate this Agreement pursuant to Section 7.1(h) if Seller Parent has received a bona fide written Competing Proposal that does not result from a breach of Section 5.10 by a Seller Party and the Seller Parent Board of Directors determines in good faith (after consultation with outside legal counsel and a financial advisor) that (i) such Competing Proposal is a Superior Proposal and (ii) the failure to effect a Adverse Recommendation Change or cause the Seller Parties to terminate this Agreement pursuant to Section 7.1(h) in response to the receipt of such Superior Proposal would be inconsistent with the Board’s fiduciary duties under applicable Law; provided, however, that, prior to making such Adverse Recommendation Change or causing the Seller Parties to terminate this Agreement pursuant to Section 7.1(h): (1) the Board provides prior written notice to Purchaser (a “Recommendation Change Notice”) that it intends to effect an Adverse Recommendation Change at least three Business Days prior to taking such action, which notice shall specify the basis for such Adverse Recommendation Change and, in the case of a Superior Proposal, include a summary of the material terms and conditions of such Superior Proposal, identifies the Person making such Superior Proposal and, if applicable, provide a copy of the proposed Alternative Acquisition Agreement (other than it being understood that such Recommendation Change Notice shall not in itself be deemed an Adverse Recommendation Change and that if Purchaser has committed in writing to any changes to the Purchaser, any terms of its affiliates or representatives this Agreement and except for information which there has been previously publicly disseminated any subsequent material revision or amendment to the terms of a Superior Proposal, a new notice to which the provisions of clauses (2) and (3) of this Section 5.10(c) shall apply mutatis mutandis except that, in the case of such a new notice, all references to three Business Days in this Section 5.10(c) shall be deemed to be two Business Days), (2) after giving such notice and prior to effecting such Adverse Recommendation Change or causing the Seller to terminate this Agreement pursuant to Section 7.1(h), Seller Parent negotiates in good faith with Purchaser (to the extent Purchaser wishes to negotiate), to make such adjustments or revisions to the terms and conditions of this Agreement such that the Competing Proposal would no longer constitute a Superior Proposal, and (3) at the end of the three Business Day period, prior to taking action to effect a Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h), the Board takes into account any adjustments or revisions to the terms of this Agreement committed to by the Company) relating to any Takeover Proposal; provided howeverPurchaser in writing, and determines in good faith, after consultation with its financial advisors and outside legal counsel, that nothing (x) the Competing Proposal remains a Superior Proposal and (y) the failure to take such action would be inconsistent with its fiduciary obligations under applicable Law. (d) Seller Parent shall promptly (and in any event no later than 48 hours after receipt of a Competing Proposal) advise Purchaser of such Competing Proposal, the material terms and conditions of any such Competing Proposal and the identity of the Person making any such Competing Proposal. Seller shall keep Purchaser reasonably informed in all material respects on a reasonably current basis of the material terms and status (including any change to the terms thereof) of any Competing Proposal. (e) Nothing contained in this Section 5.3 or any other provision hereof 5.10 shall prohibit the Company or the Board of Directors any Seller Party from (i) taking and disclosing to the Company's stockholders a position complying with respect to a tender or exchange offer by a third party pursuant to Rules Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or (ii) making such any disclosure to the Company's stockholders asof Seller Parent if, in the good good-faith judgment of the Seller Parent Board of Directors after receiving advice from outside counsel, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under applicable law. (b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of Directors, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to the Purchaser any nonpublic information regarding the Company provided to any other party which was not previously provided to the Purchaser. If the Company, after consultation with outside legal counsel) failure to so disclose would be inconsistent with its obligations under applicable Law; provided, believes however, that a breach of its fiduciary duties to in no event under clause (i) or (ii) shall the Company's stockholders would likely occur, the Seller Parent Board of Directors may (subject to this make an Adverse Recommendation Change except in accordance with Section 5.10(c). A factually accurate public statement that describes Sellers’ receipt of a Competing Proposal and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions operation of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided that the Company shall, concurrently with entering into such agreement, pay or cause to thereto shall not be paid to the Purchaser the Termination Fee deemed an Adverse Recommendation Change. (as defined in Section 8.2(bf) hereof). Notwithstanding any other provision For purposes of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover Proposal.:

No Solicitation; Board Recommendation. (a) The Company will Notwithstanding anything else in this Agreement, each of EVI and MTI shall not, nor shall either authorize or permit any of its Subsidiaries to, nor shall either authorize or permit any of its directors, officers or employees or any of its Subsidiaries or any investment banker, attorney, accountant, or other advisor or agent or Representative of it or any of its Subsidiaries to, directly or indirectly, (1) solicit, initiate, knowingly encourage, or knowingly facilitate any Acquisition Proposal or any inquiry, offer, or indication of interest that could reasonably be expected to lead to an Acquisition Proposal; or (2) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to any Acquisition Proposal, or furnish to any Person any information relating to it or any of its Subsidiaries or provide access to its or any of its Subsidiaries’ properties, books and will use records, confidential information, or data to any Person with respect to, or otherwise cooperate in any way with any Person regarding, any Acquisition Proposal; provided, however, as to the limitations set forth in (1) and (2), that at any time prior to obtaining the EVI Stockholder Approval or the MTI Stockholder Approval, as applicable, in response to a bona fide written unsolicited Acquisition Proposal that the EVI Board or the MTI Board, as applicable, determines in good faith constitutes or could reasonably be expected to lead to an EVI Superior Proposal or MTI Superior Proposal, as applicable, and which Acquisition Proposal did not result from a breach of this Section 7.2 or any other provision of this Agreement, EVI or MTI may, and may permit and authorize its best efforts Representatives and its Subsidiaries and its Subsidiaries’ Representatives to, in each case subject to ensure compliance with Section 7.2(c) and the other provisions of this Agreement, (A) furnish information with respect to it and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement which contains terms that are no less restrictive than those contained in the confidentiality agreement between MTI and EVI as contained in the Letter of Intent dated November 19, 2021 (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information had been provided or made available, or is concurrently provided or made available, to the other Parties, and (B) participate in discussions or negotiations with, and only with, the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal. Without limiting the generality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by (x) any director, officer, or employee of EVI or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or agent or Representative of EVI or any of its Subsidiaries shall be deemed to be a breach of this Section 7.2(a) by EVI and (y) any director, officer, or employee of MTI or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or agent or Representative of MTI or any of its Subsidiaries shall be deemed to be a breach of this Section 7.2(a) by MTI. (b) Neither the EVI Board, the MTI Board, nor any committee of either shall (or shall agree or resolve to): (1) withdraw or modify in a manner adverse to Parent or, Merger Sub E or Merger Sub M, as applicable, or propose publicly to withdraw or modify in a manner adverse to Parent or, Merger Sub E or Merger Sub M, as applicable, the recommendation or declaration of advisability by such board of directors or any such committee of this Agreement or the EVI Merger or MTI Merger, as applicable (any such action or any resolution or agreement to take such action being referred to herein as an “Adverse Recommendation Change”), (2) recommend, declare advisable or propose to recommend or declare advisable, the approval or adoption of any Acquisition Proposal or resolve or agree to take any such action, or adopt or approve any Acquisition Proposal, or (3) cause or permit EVI or MTI to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other agreement (each, an “Acquisition Agreement” constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal (other than a Confidentiality Agreement referred to in Section 7.2(a)), or resolve or agree to take any such action; provided, however, at any time prior to the EVI Stockholder Approval or the MTI Stockholder Approval, as applicable, the EVI Board or the MTI Board may, in response to receipt of an EVI Superior Proposal or MTI Superior Proposal, as applicable, that has not been withdrawn, effect an Adverse Recommendation Change; provided that the EVI Board or the MTI Board determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, that the failure to do so is reasonably likely to result in a breach of its fiduciary duties to its stockholders under applicable Law; and provided, further, that neither the EVI Board or the MTI Board may effect such an Adverse Recommendation Change unless (A) it shall have first provided prior written notice to each other Party (an “Adverse Recommendation Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to an EVI Superior Proposal or MTI Superior Proposal, as applicable,which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such EVI Superior Proposal or MTI Superior Proposal, as applicable, and (B) no other Party makes, within five (5) Business Days after the receipt of such notice, a proposal that would, in the reasonable good faith judgment of the EVI Board or MTI Board, as applicable (after consultation with a financial advisor of national reputation and outside legal counsel), cause the offer previously constituting an EVI Superior Proposal or MTI Superior Proposal, as applicable, to no longer constitute an EVI Superior Proposal or MTI Superior Proposal, as applicable (it being understood and agreed that any amendment or modification of such EVI Superior Proposal or MTI Superior Proposal, as applicable, shall require a new Adverse Recommendation Change Notice and a new five (5) Business Day period). Each of EVI and MTI agrees that, during the five (5) Business Day period prior to its effecting an Adverse Recommendation Change, it and its Representatives shall negotiate in good faith with the other Parties and their Representatives regarding any revisions to the terms of the EVI Merger or the MTI Merger and the other transactions contemplated by this Agreement. (c) In addition to the obligations of EVI and MTI set forth in paragraphs Section 7.2(a) and Section 7.2(b) of this Section 7.2, each of EVI and MTI shall, as promptly as possible and in any event within twenty-four (24) hours after the receipt thereof, advise the other Parties orally and in writing of (1) any Acquisition Proposal or any request for information or inquiry or other communication that it reasonably believes could lead to or contemplates an Acquisition Proposal and (2) the terms and conditions of such Acquisition Proposal, request, or inquiry (including any subsequent amendment or other modification to such terms and conditions) and the identity of the Person making any such Acquisition Proposal, request, or inquiry. Commencing upon the provision of any notice referred to above, the Party providing such notice (or its outside counsel) shall (A) on a daily basis at mutually agreeable times, advise and confer with each other Party (or its outside counsel) regarding the progress of negotiations concerning any Acquisition Proposal, the material resolved and unresolved issues related thereto and any other matters identified with reasonable specificity by any such Party (or its outside counsel) and the material details (including material amendments or proposed amendments as to price and other material terms) of any such Acquisition Proposal, request, or inquiry and (B) promptly upon receipt or delivery thereof, provide each other Party (or its outside counsel) with copies of all documents and material written or electronic communications relating to any such Acquisition Proposal (including the financing thereof), request, or inquiry exchanged between EVI or MTI, as applicable, their Subsidiaries, or any of their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the one hand, and other agents do not, directly the Person making an Acquisition Proposal or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate (including by the furnishing of information) the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal, (ii) enter into any agreement with respect to any Takeover Proposal, or (iii) in the event of an unsolicited Takeover Proposal for the Company engage in negotiations or discussions with, or provide any information or data to, any Person (other than the Purchaser, any of its affiliates Affiliates, or representatives and except for information which has been previously publicly disseminated by their respective officers, directors,employees, investment bankers, attorneys, accountants or other advisors or Representatives, on the Companyother hand. (d) relating to any Takeover Proposal; provided however, that nothing Nothing contained in this Section 5.3 7.2 or any other provision hereof elsewhere in this Agreement shall prohibit the Company EVI or the Board of Directors MTI from (i) taking and disclosing to the Company's its stockholders a position with respect to a tender or exchange offer contemplated by a third party pursuant to Rules Rule 14d-9 (17 C.F.R. 240.14d-9) and 14e-2 Rule 14e-2(a) (17 C.F.R. 240.14e-2) promulgated under the Exchange Act or (ii) making such any disclosure to the Company's its stockholders asif, in the good faith judgment of the EVI Board of Directors after receiving advice from or MTI Board, upon consultation with its outside counsel, the Company deems necessary to comply with its fiduciary duties to the Company's stockholders under such disclosure is required by applicable law. (b) Notwithstanding the foregoingLaw; provided, prior to the acceptance of Shares pursuant to the Offerhowever, that in no event shall EVI, MTI, the Company may furnish information concerning its businessEVI Board, properties or assets to any Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning a Takeover Proposal (provided that the Company shall not agree to any exclusive right to negotiate with the Company) if (x) such entity MTI Board or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction that provides for consideration which the Board of Directors determines in good faith, after receiving advice from a nationally recognized investment banking firm, is more favorable to the Company and its stockholders than the Offer and the Merger (taking into account all relevant factors) and which is not conditioned upon obtaining additional financing not fully committed at such time or, in the view of a nationally recognized investment banking firm, is reasonably likely to be obtained under then existing market conditions, and (y) in the opinion of the Board of Directors, after receiving advice from outside legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to breach its fiduciary duties to the Company's stockholders under applicable law (a Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly provide to the Purchaser any nonpublic information regarding the Company provided to any other party which was not previously provided to the Purchaser. If the Company, after consultation with outside legal counsel, believes that a breach of its fiduciary duties to the Company's stockholders would likely occur, the Board of Directors may (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Offer and the Merger is advisable and no longer recommends approval (a "Subsequent Determination"), but only at a time that is after the fifth business day following the Purchaser's receipt of written notice advising the Purchaser that the Board of Directors has received a Superior Proposal specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation), identifying the Person making such Superior Proposal and stating that it intends to make a Subsequent Determination. Notwithstanding anything herein to the contrary, prior to and including such fifth day the Company may make such public disclosure that is in its view required under the Federal securities laws, as evidenced by an opinion from outside counsel to the Company, a copy of which shall be provided to Purchaser prior to such disclosure. After providing such notice, the Company shall provide a reasonable opportunity to the Purchaser to make such adjustments in the terms and conditions of this Agreement and/or of the Option Agreement as would enable the Company to proceed with its recommendation to its stockholders without a Subsequent Determination. At any time after five business days following notification to the Purchaser of the Company's intent to do so and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an agreement with respect to a Superior Proposal; provided that the Company shall, concurrently with entering into such agreement, pay or cause to be paid to the Purchaser the Termination Fee (as defined in Section 8.2(b) hereof). Notwithstanding any other provision of this Agreement, the Company shall submit this Agreement to its stockholders, whether or not the Board of Directors makes a Subsequent Determination. (c) Except as set forth in Section 5.3(b), neither the Board of Directors nor any committee thereof shall (i) withdraw or modifytake, or propose agree or resolve to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation take any action prohibited by the Board of Directors or any such committee of the Offer, this Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (iii) enter into any agreement with respect to any Takeover ProposalSection 7.2(b).