Common use of No Solicitation by Company Clause in Contracts

No Solicitation by Company. (a) The Company shall not directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any similar action, (ii) furnish any non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.4 by the Company. (b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) furnishing information regarding any of the Acquired Corporations (including a copy of this Section 4.4) to any Person in connection with or in response to a bona fide, unsolicited Acquisition Proposal or engaging in discussions or negotiations with respect thereto if and only to the extent that (A) the Board of Directors of the Company determines in good faith, after consultation with its financial advisor that such Acquisition Proposal is reasonably likely to result in a Superior Offer, (B) the Board of Directors of the Company determines in good faith, after consultation with its outside counsel, including discussions of applicable legal standards under California law, that such action is required in order for the Board of Directors to comply with its fiduciary duties under applicable law, (C) the Person who has requested such information has executed and delivered to the Company a non-disclosure

No Solicitation by Company. (a) The Company shall not agrees that neither it nor any of its subsidiaries nor any of their respective officers, directors, employees, agents and representatives, (including without limitation any investment banker, attorney or accountant retained by it or any of its subsidiaries) (collectively, "Representatives"), will, directly or indirectly, and shall not authorize initiate, solicit, encourage or permit otherwise facilitate any inquiries or the making of any Company Takeover Proposal (as defined below). Company further agrees that neither it nor any of the other Acquired Corporations or any Representative of its subsidiaries nor any of the Acquired Corporations their Representatives will, directly or indirectly toindirectly, (i) solicitengage in any negotiations concerning, initiate, knowingly encourage or induce the making, submission provide any confidential or announcement of any Acquisition Proposal or take any similar action, (ii) furnish any non-public information regarding or data to, afford access to the properties, books or records of Company or any of the Acquired Corporations its subsidiaries to, or have any discussions with, any person relating to any Person in connection with or in response to an Acquisition a Company Takeover Proposal, (iii) engage in enter into any agreement or instrument relating to a Company Takeover Proposal or otherwise facilitate any effort or attempt to make or implement a Company Takeover Proposal. Company agrees that it will immediately cease and cause to be terminated all existing activities, discussions or negotiations with any Person parties heretofore with respect to any Acquisition Proposalof the foregoing (if any). Company agrees that it will take the necessary steps to promptly inform each of its Representatives of the obligations undertaken in this Section 4.4 and in the Confidentiality Agreement (as defined in Section 5.4). Company agrees that it will notify Parent promptly if any inquiries, (iv) approveproposals or offers relating to a Company Takeover Proposal are received by, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document such information is requested from, or any Contract contemplating such discussions or otherwise relating negotiations are sought to be initiated or continued with, Company or any Acquisition Transaction. Without limiting of its representatives indicating, in connection with such notice, the generality name of the foregoingperson making the inquiry, proposal or offer and the material terms and conditions of any proposals or offers and thereafter shall provide Parent with a true and complete copy of such Company acknowledges Takeover Proposal communication (if it is in writing) and otherwise keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such negotiations or discussions. Company also agrees that any violation it will promptly request each person that has heretofore executed a confidentiality or non-disclosure agreement in connection with its consideration of acquiring it or any of the restrictions set forth in the preceding sentence its subsidiaries to return to Company all confidential information heretofore furnished to such person by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of it or any of its subsidiaries. At the Acquired CorporationsClosing, Company shall be deemed assign to constitute a breach Parent the non-exclusive right to enforce the rights of this Section 4.4 by the CompanyCompany and its subsidiaries under any and all confidentiality or non-disclosure agreements entered into between Company and prospective acquirors of Company or any of its subsidiaries. (b) Nothing contained The parties hereto agree that irreparable damage would occur in this Agreement shall prevent the Company or its Board of Directors from (i) furnishing information regarding any of event that the Acquired Corporations (including a copy provisions of this Section 4.4) 4.4 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Section 4.4 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any Person in connection with other remedy to which the parties may be entitled at law or in response to equity. (c) For purposes of this Agreement, "Company Takeover Proposal" means any offer or proposal for, or any indication of interest in, a bona fide, unsolicited Acquisition Proposal merger or engaging in discussions other business combination involving Company or negotiations with respect thereto if and only to the extent that acquisition of ten percent (A10%) the Board of Directors or more of the Company determines in good faithoutstanding shares of capital stock of Company, after consultation with its financial advisor that such Acquisition Proposal is reasonably likely to result in or a Superior Offer, (B) the Board of Directors material portion of the assets of, Company determines in good faith(other than the transactions contemplated by this Agreement), after consultation or any other transaction inconsistent with its outside counsel, including discussions consummation of applicable legal standards under California law, that such action is required in order for the Board of Directors to comply with its fiduciary duties under applicable law, (C) the Person who has requested such information has executed and delivered to the Company a non-disclosuretransactions contemplated hereby.

No Solicitation by Company. (a) The Company agrees that, prior to the Effective Time, neither it nor any of its Subsidiaries shall, and that it shall cause its and each of its Subsidiaries’ officers, directors, employees, advisors, representatives and agents not to, directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (i) solicit, initiateinitiate or encourage (including by way of providing information), or knowingly encourage facilitate any inquiries, proposals or induce offers with respect to, or the makingmaking or completion of, submission or announcement of any Company Acquisition Proposal or take any similar actionProposal, (ii) furnish provide or disclose any non-public information regarding any of the Acquired Corporations to any Person relating to the Company or its Subsidiaries in connection with a Company Acquisition Proposal, participate or engage in response any discussions or negotiations concerning a Company Acquisition Proposal, or otherwise take any action to an facilitate any effort or attempt to make or implement a Company Acquisition Proposal, (iii) engage in discussions approve, endorse, recommend, agree to or negotiations with accept, or propose publicly to approve, recommend, endorse, agree to or accept, any Person with respect to any Company Acquisition Proposal, (iv) withdraw, modify or amend the Company Recommendation in any manner adverse to Parent, (v) approve, endorse recommend, endorse, agree to or recommend accept, or propose to approve, recommend, endorse, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Company Acquisition Proposal or (vvi) enter into resolve, propose or agree to do any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transactionthe foregoing. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of the Company’s Subsidiaries or any of the Acquired CorporationsCompany’s or the Company Subsidiaries’ officers, whether directors, employees, agents or not such Representative is purporting to act on behalf of representatives (including any of investment banker, attorney or accountant retained by the Acquired Corporations, Company or the Company Subsidiaries) shall be deemed to constitute a breach of this Section 4.4 4.3(a) by the Company. The Company shall promptly inform its advisors and representatives of the Company’s obligations under this Section 4.3(a). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Company Acquisition Proposal (except with respect to the transactions contemplated by this Agreement). (b) Nothing The Company shall notify Parent promptly (and in any event within 24 hours) upon receipt after the date hereof by it or its Subsidiaries or representatives from any third party of any Company Acquisition Proposal. The Company shall notify Parent promptly (and in any event within two business days) of the identity of such third party and provide a copy of such Company Acquisition Proposal, indication, inquiry or request (or, where no such copy is available, a description of the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request), including any material modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event within five business days of the occurrence of any changes, developments, discussions or negotiations) of the status of any such Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), including furnishing copies of any written revised proposals. Without limiting the foregoing, the Company shall promptly (and in any event within five business days) notify Parent orally and in writing if it determines to begin negotiations concerning a Company Superior Proposal pursuant to Section 4.3(c). The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is party to any agreement, which prohibits the Company from providing such information to Parent. (c) Notwithstanding Section 4.3(a), nothing contained in this Agreement shall prevent the Company or its the Company Board of Directors from (i) furnishing information regarding any of from, prior to the Acquired Corporations (including a copy adoption of this Section 4.4) to any Person in connection with or in response to a bona fideAgreement by the holders of Company Common Stock, unsolicited Acquisition Proposal or engaging in any discussions or negotiations with respect thereto with, or providing any non-public information to, any Person, if and only to the extent that (Ai) the Company receives from such Person a bona fide written Company Superior Proposal, or a Company Acquisition Proposal, which was not solicited by the Company and did not otherwise violate the provisions of Section 4.3(b), and which the Company Board of Directors concludes in good faith (after consultation with its outside legal counsel and outside financial advisors) could reasonably be expected to result in a Company Superior Proposal and (after consultation with its outside legal counsel) that the failure to act on the Company Superior Proposal or Company Acquisition Proposal, as the case may be, could be inconsistent with its fiduciary obligations to the stockholders of the Company determines under applicable Laws, (ii) prior to providing or disclosing any non-public information to any Person in connection with such proposal, the Company Board receives from the Person making such Company Acquisition Proposal an executed confidentiality agreement containing terms no less restrictive on such Person than the terms contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not be required to contain standstill provisions and shall not contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 4.3, and (iii) the Company concurrently discloses any such non-public information to Parent if such non-public information has not been disclosed previously to Parent. (d) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Company Stockholder Approval, in response to a material development or change in circumstances which occurs or arises after the date of this Agreement (an “Intervening Event”), that was not known by the Company Board as of the date of this Agreement, the Company Board may, if it concludes in good faith (after consultation with its outside legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, withdraw, modify or change its recommendation of this Agreement and the Merger (a “Company Change of Recommendation”), but only at a time that is after the fifth business day following Parent’s receipt of written notice from the Company advising Parent of its intention to do so; provided that, if such action is in response to or relates to a Company Acquisition Proposal, then the Company Change of Recommendation shall be taken only in compliance with Section 4.3(e). (e) Notwithstanding anything in this Agreement to the contrary, in response to a Company Acquisition Proposal which was not solicited by the Company or otherwise in violation of Section 4.3(a), if the Company Board concludes in good faith (after consultation with its outside legal and financial advisors) that a Company Acquisition Proposal constitutes a Company Superior Proposal and (after consultation with its legal advisors) that failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Laws, the Company Board may at any time prior to the Company Stockholder Approval (i) effect a Company Change of Recommendation or (ii) terminate this Agreement to enter into a definitive agreement with respect to such Company Superior Proposal; provided, however, that the Company Board may not effect such Company Change of Recommendation or termination unless and until (i) five business days have elapsed following delivery to Parent of a written notice of such determination by the Company Board and of the material terms and conditions of the Company Acquisition Proposal and the identity of the Person making the Company Acquisition Proposal, and, during such five business day period, the Company reasonably cooperates with Parent and Merger Sub with respect thereto with the intent of enabling Parent and Merger Sub to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected and so that such Company Acquisition Proposal would no longer represent a Company Superior Proposal, including negotiating in good faith with Parent and its representatives with respect to any proposed revisions to the terms of this Agreement, (ii) at the end of such five business day period, the Company Board shall have determined in good faith, after consultation with its financial advisor that considering the results of such Acquisition Proposal is reasonably likely negotiations and giving effect to result in a Superior Offerthe proposals made by Parent, (B) the Board of Directors of the Company determines in good faithif any, after consultation with its outside legal counsel, including discussions that (A) in the case of a Company Change of Recommendation, failure to take such action could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable legal standards under California lawLaws and (B) in the case of a termination of this Agreement, that such action Company Acquisition Proposal remains a Company Superior Proposal as compared to the Merger, as supplemented by any counterproposals made by Parent; provided that, in the event the Company Board does not make the determination referred to in this clause (ii) of this paragraph but thereafter determines to effect a Company Change of Recommendation or termination pursuant to this Section 4.3(e), the foregoing procedures shall apply anew and shall also apply to any subsequent withdrawal, amendment or modification, and (iii) contemporaneously with such termination, the Company enters into a definitive acquisition, merger or similar agreement to effect the Company Superior Proposal. (f) Nothing in this Agreement shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 or 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s stockholders if the Company Board (after consultation with its legal advisors), concludes that its failure to do so could be inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Law; it being understood that any such disclosure that does not reaffirm the Company Board’s recommendation of this Agreement and the Merger (and recommend that the Company’s shareholders reject the applicable tender offer or exchange offer within the ten day period specified by Rule 14d-9) or which is required otherwise adverse to Parent and Merger Sub shall be deemed a Company Change of Recommendation for purposes of this Agreement. (g) Notwithstanding the foregoing, unless and until this Agreement shall have been terminated in order for accordance with its terms, the Board of Directors to Company shall comply with its fiduciary duties obligations under applicable law, (C) the Person who has requested such information has executed and delivered to Section 5.2 whether or not the Company Board makes a non-disclosureCompany Change of Recommendation or recommends any other offer or proposal. Any action pursuant to and in accordance with Sections 4.3(d),(e) or (f) shall not constitute a breach of the Company’s representations, warranties, covenants or agreements contained in this Agreement.

No Solicitation by Company. (a) The 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of its Subsidiaries and Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Section 7.1, directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (ia) solicit, initiate, knowingly encourage or induce knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or the making, submission or announcement making of any Acquisition Proposal proposal or take offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, or (b) engage or enter into, continue or otherwise participate in any similar actiondiscussions or negotiations regarding, (ii) or furnish to any other Person material non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries’ Representatives to (iiii) engage in immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to any Acquisition Proposala Company Takeover Proposal as of the date of this Plan of Merger, (ivii) approve, endorse request promptly thereafter that such Person promptly return or recommend any Acquisition Proposal destroy all confidential information concerning Company and the Company Subsidiaries delivered or (v) enter into any letter of intent made available to such Person or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoingits Representatives by Company, the Company acknowledges Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and agrees that any violation summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. 5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of the restrictions set forth in the preceding sentence by its Representatives receives a Company Takeover Proposal from any Representative Person or group of Persons, which Company Takeover Proposal did not result from any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.4 by 5.3, then Company and its Representatives may (a) contact such Person or Group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company. Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) Nothing contained in this Agreement shall prevent if the Company or its Board of Directors from (i) furnishing information regarding any of the Acquired Corporations (including a copy of this Section 4.4) to any Person in connection with or in response to a bona fide, unsolicited Acquisition Proposal or engaging in discussions or negotiations with respect thereto if and only to the extent that (A) the Board of Directors of the Company determines in good faith, after consultation with its independent financial advisor advisors and outside legal counsel, that such Acquisition Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal, and that failure to take such action would more likely than not to result in a Superior Offerbreach of the Company Board of Directors’ fiduciary duties (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Confidentiality Agreement) promptly make available to Purchaser (through an electronic dataroom or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written material non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Company Takeover Proposal and their respective Representatives; provided further that Company shall promptly provide to Purchaser (A) a copy of any Company Takeover Proposal made in writing by any such Person or group of Persons to Company, any of the Company Subsidiaries, or any of their respective Representatives, and the identity of the Person making the Company Takeover Proposal, and (B) the Board of Directors a written summary of the material terms of any such Company determines Takeover Proposal not made in good faithwriting. For the purposes of this Plan of Merger, after consultation with its outside counsel, including discussions of applicable legal standards under California law, “Acceptable Company Confidentiality Agreement” means any confidentiality agreement that such action is required contains terms that are no less favorable to Company than those contained in order for the Board of Directors to comply with its fiduciary duties under applicable law, (C) the Person who has requested such information has executed and delivered to the Company a non-disclosureConfidentiality Agreement.

No Solicitation by Company. (a) The Company shall not directly Except as otherwise provided in this Section 4.3, until the earlier of the Effective Time and the date of termination of this Agreement, neither Company, nor any of its Subsidiaries or indirectly, and shall not authorize or permit any of the other Acquired Corporations officers, directors, agents, or representatives of it or its Subsidiaries (including any investment banker, attorney or accountant retained by it or any Representative of any of the Acquired Corporations directly or indirectly to, its Subsidiaries) shall (i) solicit, initiateinitiate or encourage (including by way of furnishing information), knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal or take any similar actionother action designed to facilitate, any inquiries or the making of any proposal which constitutes a Company Takeover Proposal (as defined in this Section 4.3), (ii) furnish participate in any non-public information discussions or negotiations regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Company Takeover Proposal, (iii) engage in discussions enter into any agreement regarding any Company Takeover Proposal or negotiations with any Person with respect to any Acquisition Proposal, (iv) approvemake or authorize any statement, endorse recommendation or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation solicitation in support of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.4 by the Company. (b) Nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) furnishing information regarding any of the Acquired Corporations (including a copy of this Section 4.4) to any Person in connection with or in response to a bona fide, unsolicited Acquisition Proposal or engaging in discussions or negotiations with respect thereto if Takeover Proposal. If and only to the extent that (Ai) Company Stockholders Meeting shall not have occurred, (ii) the Board of Directors of the Company determines in good faith, after consultation with its financial advisor that such Acquisition Proposal is reasonably likely to result in a Superior Offer, (B) the Board of Directors of the Company determines in good faith, after consultation with its outside counsel, including discussions of applicable legal standards under California law, that such action it is required necessary to do so in order for the Board of Directors to comply with its fiduciary duties to Company’s stockholders under applicable lawlaw in light of a bona fide Company Takeover Proposal that has not been withdrawn, (Ciii) such Company Takeover Proposal was not solicited by it and did not otherwise result from a breach of this Section 4.3(a), and (iv) Company provides prior written notice to Parent of its decision to take such action, Company shall be permitted to (A) furnish information with respect to Company and any of its Subsidiaries to such Person pursuant to a customary confidentiality agreement consistent with the Person who has requested such information has executed confidentiality agreement dated December 12, 2003 between Company and delivered to Parent (the Company a non-disclosure“Confidentiality Agreement”), (B) participate in

No Solicitation by Company. (a) The 5.3.1 Except as specifically permitted by this Section 5.3, Company shall not and shall cause each of its Subsidiaries and Representatives not to, during the period from the date of this Plan of Merger until the earlier of the Effective Time and the termination of this Plan of Merger in accordance with Section 7.1, directly or indirectly, and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to, (ia) solicit, initiate, knowingly encourage or induce knowingly facilitate (including by way of furnishing non-public information) any inquiries regarding, or the making, submission or announcement making of any Acquisition Proposal proposal or take offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, or (b) engage or enter into, continue or otherwise participate in any similar actiondiscussions or negotiations regarding, (ii) or furnish to any other Person material non-public information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition any Company Takeover Proposal, or otherwise cooperate with or assist or participate in, or encourage or knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make a Company Takeover Proposal. Company shall, and shall cause each of the Company Subsidiaries and each of its and the Company Subsidiaries’ Representatives to (iiii) engage in immediately upon execution of this Plan of Merger, cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to any Acquisition Proposala Company Takeover Proposal as of the date of this Plan of Merger, (ivii) approve, endorse request promptly thereafter that such Person promptly return or recommend any Acquisition Proposal destroy all confidential information concerning Company and the Company Subsidiaries delivered or (v) enter into any letter of intent made available to such Person or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoingits Representatives by Company, the Company acknowledges Subsidiaries or any Representatives thereof, in connection with its consideration of a Company Takeover Proposal and agrees that any violation summaries, analyses or extracts thereof or based thereon, and any files, copies or records containing such information in any computer or electronic media, and (iii) immediately upon execution of this Plan of Merger, terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. 5.3.2 Notwithstanding anything to the contrary contained herein, if at any time prior to obtaining the Company Shareholder Approval, Company or any of the restrictions set forth in the preceding sentence by its Representatives receives a Company Takeover Proposal from any Representative Person or group of Persons, which Company Takeover Proposal did not result from any of the Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 4.4 by 5.3, then Company and its Representatives may (a) contact such Person or Group of Persons and their Representatives to request that such Person or group of Persons provide clarification of any term or condition of such Company Takeover Proposal that the Company. Company Board of Directors determines in good faith to be ambiguous or unclear, and (b) Nothing contained in this Agreement shall prevent if the Company or its Board of Directors from (i) furnishing information regarding any of the Acquired Corporations (including a copy of this Section 4.4) to any Person in connection with or in response to a bona fide, unsolicited Acquisition Proposal or engaging in discussions or negotiations with respect thereto if and only to the extent that (A) the Board of Directors of the Company determines in good faith, after consultation with its independent financial advisor advisors and outside legal counsel, that such Acquisition Company Takeover Proposal constitutes, or is reasonably expected to lead to, a Company Superior Proposal, and that failure to take such action would more likely than not to result in a Superior Offerbreach of the Company Board of Directors’ fiduciary duties (i) furnish, pursuant to an Acceptable Company Confidentiality Agreement, information (including non-public information) with respect to Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal and their respective Representatives; provided that Company shall (subject to the terms of the Confidentiality Agreement) promptly make available to Purchaser (through an electronic dataroom or otherwise), and concurrently provide express written notification, via electronic mail notification to Purchaser in accordance with the applicable provisions of Section 9.8, of the availability of, any written material non-public information that is provided to any such Person or group of Persons or their respective Representatives, if such information was not previously provided to Purchaser or its Representatives, and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Company Takeover Proposal and their respective Representatives; provided further that Company shall promptly provide to Purchaser (A) a copy of any Company Takeover Proposal made in writing by any such Person or group of Persons to Company, any of the Company Subsidiaries, or any of their respective Representatives, and the identity of the Person making the Company Takeover Proposal, and (B) the Board of Directors a written summary of the material terms of any such Company determines Takeover Proposal not made in good faithwriting. For the purposes of this Plan of Merger, after consultation with its outside counsel, including discussions of applicable legal standards under California law, "Acceptable Company Confidentiality Agreement" means any confidentiality agreement that such action is required contains terms that are no less favorable to Company than those contained in order for the Board of Directors to comply with its fiduciary duties under applicable law, (C) the Person who has requested such information has executed and delivered to the Company a non-disclosureConfidentiality Agreement.