Common use of No Solicitation; Change of Recommendation Clause in Contracts

No Solicitation; Change of Recommendation. (a) Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company and its Subsidiaries, collectively referred to herein as the “Company Representatives”), directly or indirectly: (i) solicit, initiate or knowingly take any action to encourage or facilitate the making of an Acquisition Proposal, (ii) participate in any discussions or negotiations with or furnish any information with respect to the Company or any of its Subsidiaries to any third party in connection with an Acquisition Proposal, (iii) take any action to render the Company Rights or Section 203 of Delaware Law inapplicable to any transaction included in the definition of Acquisition Proposal or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (iv) approve or enter into any agreement (including an agreement in principle, letter of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. Notwithstanding the foregoing, if at any time prior to the Acceptance Date, the Company receives a bona fide written Acquisition Proposal that was not solicited on or after the date of this Agreement and the Company is in compliance with this Section 7.04, (1) the Company and Company Representatives may contact the third party or parties making such Acquisition Proposal solely for the purpose of clarifying the terms and conditions thereof and (2) if the Board of Directors determines in good faith (after considering the advice of its outside legal and financial advisors) that such Acquisition Proposal is or would be reasonably likely to lead to a Superior Proposal, the Company may:

No Solicitation; Change of Recommendation. (a) Neither the Company nor any of North Valley agrees that it shall, and shall cause its Subsidiaries shallto, nor and shall the Company or any of direct and use its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company its and its Subsidiaries’ directors, collectively referred to herein as the officers, employees, advisors and agents (collectively, “Company Representatives”) to, immediately cease all existing discussions or negotiations with any Person (other than TriCo and its affiliates and Representatives) conducted heretofore with respect to any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (as defined below). Except as expressly permitted in this Section 6.7, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, North Valley shall not, and shall cause its Subsidiaries not to, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: , (i) solicit, initiate or knowingly take encourage any action to encourage or facilitate the making of an Acquisition Proposal, , (ii) enter into, or otherwise participate in any discussions (except for the limited purpose of notifying such person of the existence of the provisions of this Section 6.7) or negotiations regarding any Acquisition Proposal, (iii) enter into any agreement regarding any Acquisition Proposal or Alternative Transaction (as defined below), (iv) furnish to any person any information concerning North Valley, or any access to the properties, books and records of North Valley and its Subsidiaries, in connection with any Acquisition Proposal, or (v) propose, agree or publicly announce an intention to take any of the foregoing actions or any other action which would reasonably be expected to lead to an Acquisition Proposal. North Valley shall use commercially reasonable efforts to request all Persons other than TriCo, TriCo’s Representatives and North Valley’s Representatives who have been furnished confidential information regarding North Valley in connection with the solicitation of or discussions regarding an Acquisition Proposal within the eighteen (18) months prior to the date hereof promptly to return or destroy such information. Except as permitted by this Section 6.7, North Valley agrees not to, and to cause its Subsidiaries not to, release any third party from, and agrees to enforce, the confidentiality and standstill provisions of any agreement to which North Valley or its Subsidiaries is a party that remains in effect as of the date hereof, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person to make an Acquisition Proposal. (b) Notwithstanding anything to the contrary contained in this Section 6.7, if at any time after the date hereof and prior to obtaining North Valley Shareholder Approval, North Valley or any of its Subsidiaries, or any of its or their respective Representatives, having each theretofore complied with the terms of Section 6.7(a), receives a bona fide, unsolicited written Acquisition Proposal, North Valley, the North Valley Board and their respective Representatives may engage in negotiations and discussions with, and furnish any information and other access (so long as all such information and access has previously been made available to TriCo or is made available to TriCo prior to or concurrently with respect the time such information or access is made available to such Person) to, any Person making such Acquisition Proposal and its Representatives if, and only if, the North Valley Board determines in good faith, after consultation with North Valley’s outside legal and financial advisors, that (i) such Acquisition Proposal is or is reasonably capable of becoming a Superior Proposal and (ii) the failure of the North Valley Board to furnish such information or access or enter into such discussions or negotiations would reasonably be expected to be a violation of its fiduciary duties to the Company shareholders of North Valley under applicable Law; provided that prior to furnishing any material nonpublic information, North Valley shall have received from the Person making such Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such Person as the Confidentiality Agreement is on TriCo, which confidentiality agreement shall not prohibit North Valley from complying with the terms of this Section 6.7. North Valley will promptly, and in any event within one (1) Business Day, (x) notify TriCo in writing of the receipt of such Acquisition Proposal or any request for nonpublic information relating to North Valley or any of its Subsidiaries or for access to the properties, books or records of North Valley or any of its Subsidiaries by any Person that has made, or to North Valley’s Knowledge may be considering making, an Acquisition Proposal and (y) communicate the material terms of such Acquisition Proposal to TriCo, including as they may change upon any modification or amendment to the terms thereof. North Valley will keep TriCo reasonably apprised of the status of and other matters relating to any such Acquisition Proposal on a timely basis. (c) Except as expressly permitted by this Section 6.7, neither North Valley nor the North Valley Board shall (i)(A) withdraw, modify or qualify, or publicly propose to withdraw, modify or qualify, in a manner adverse to TriCo, the North Valley Board Recommendation or (B) approve or recommend, or publicly propose to approve or recommend, to the shareholders of North Valley any Acquisition Proposal or Alternative Transaction or (ii) authorize, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow North Valley or any of its Subsidiaries to enter into any third party in connection with an Acquisition Proposal, (iii) take any action to render the Company Rights or Section 203 letter of Delaware Law inapplicable to any transaction included in the definition intent, memorandum of Acquisition Proposal or grant any waiver or release under any standstill understanding, merger agreement, acquisition agreement, option agreement or similar agreement with respect to, or that is intended to or would reasonably be expected to lead to, any class Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.2(b) pursuant to and in accordance with the limitations set forth therein) (any action described in this Section 6.7(c) being referred to as a “Change of equity securities of the Company or any of its Subsidiaries, orRecommendation”). (ivd) approve or enter into any agreement (including an agreement Notwithstanding anything to the contrary in principlethis Agreement, letter of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. Notwithstanding the foregoing, if at any time prior to obtaining the Acceptance DateShareholder Approval, the Company North Valley Board may make a Change of Recommendation, if (A) North Valley has complied with the terms of this Section 6.7, (B) the North Valley Board receives a an unsolicited bona fide fide, written Acquisition Proposal from any Person that was is not solicited on withdrawn and (C) the North Valley Board determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal; provided that: (i) the North Valley Board determines in good faith, after consultation with its outside legal counsel, that the failure of the North Valley Board to take such action would reasonably be expected to be a violation of its fiduciary duties to the shareholders of North Valley under applicable Law; and (1) North Valley provides TriCo prior written notice at least five (5) Business Days (or such longer period as it may be extended upon the modification or amendment of the Acquisition Proposal as contemplated below) prior to taking such action, which notice shall state that the North Valley Board has received a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the North Valley Board has resolved to effect a Change of Recommendation, which notice shall specify the basis for such Change of Recommendation or termination, including the material terms of the Superior Proposal (a “Notice of Superior Proposal”) (it being understood that such Notice of Superior Proposal shall not in and of itself be deemed a Change of Recommendation); (2) during such five (5) Business Day period (as it may be extended upon the modification or amendment of the Acquisition Proposal as contemplated below), North Valley negotiates in good faith with TriCo (to the extent that TriCo wishes to negotiate) to enable TriCo to make an offer that is at least as favorable to the shareholders of North Valley so that such Acquisition Proposal would cease to constitute a Superior Proposal; and (3) at the end of such five (5) Business Day period (as it may be extended upon the modification or amendment of the Acquisition Proposal as contemplated below, or such earlier time that TriCo advises North Valley in writing that it no longer wishes to negotiate to amend this Agreement), the North Valley Board, after taking into account any modifications to the date terms of this Agreement and the Company is in compliance with this Section 7.04Merger agreed to by TriCo after receipt of such notice, (1) the Company and Company Representatives may contact the third party or parties making such Acquisition Proposal solely for the purpose of clarifying the terms and conditions thereof and (2) if the Board of Directors determines in good faith (after considering the advice of its outside legal and financial advisors) continues to believe that such Acquisition Proposal is or would be reasonably likely to lead to constitutes a Superior Proposal. It is understood that and agreed that any amendment or modification to the financial or other material terms of the Acquisition Proposal giving rise to the Notice of Superior Proposal shall constitute a new Acquisition Proposal giving rise to a new five (5) Business Day response period for TriCo, consequently extending the Company may:periods referenced in Sections 6.7(d)(ii)(1)-(3) above. (e) Nothing in this Agreement shall prohibit North Valley from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders any position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act, provided that any disclosure under Rule 14e-2(a)(1) shall be deemed to be a Change of Recommendation unless the North Valley Board expressly and concurrently reaffirms the North Valley Board Recommendation. (f) As used in this Agreement, “Acquisition Proposal” shall mean any proposal or offer (whether in writing or otherwise) from any Person (other than TriCo and any affiliates thereof) relating to, or that is reasonably expected to lead to, (A) any direct or indirect purchase or acquisition, in a single transaction or series of related transactions, of any assets or businesses of North Valley and its Subsidiaries (including securities of Subsidiaries) that constitute 5% or more of North Valley’s consolidated assets, (B) any direct or indirect purchase or acquisition, in a single transaction or series of related transactions, of beneficial ownership (as defined under Section 13(d) of the Exchange Act) of 5% or more of the total outstanding voting securities of North Valley pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, tender offer, exchange offer or similar transaction, or (C) a merger, share exchange, consolidation or other business combination involving North Valley or North Valley Bank, other than the Merger or the Bank Merger (any such transaction described in clauses (A) and (B) an “Alternative Transaction”).

No Solicitation; Change of Recommendation. (a) Neither Except as expressly permitted by this Section 7.2, the Company nor any of shall, and shall cause its Subsidiaries shalland its and such Subsidiaries’ directors, nor officers and employees to, and shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives to: (i) following execution of this Agreement, promptly cease any existing solicitations, discussions or negotiations with, and the provision of any nonpublic information to, any Persons that may be ongoing with respect to any Acquisition Proposal or any inquiry, proposal, discussion, offer or request that would reasonably be expected to result in an Acquisition Proposal; (ii) (A) as promptly as reasonably practicable (and in any event within two (2) Business Days) following the date hereof, request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all confidential information previously furnished to any Person (other than Parent and Merger Sub) that has, within the one (1)-year period prior to the date of this Agreement, entered into a confidentiality agreement with the Company or any of its Subsidiaries authorize that would reasonably be expected to result in an Acquisition Proposal and (B) enforce the provisions of any existing confidentiality or non-disclosure agreement entered into with respect to any such Person (provided, that, the Special Committee shall be permitted to grant waivers of, and not to enforce, any standstill provision to the extent necessary to permit the counterparty thereto to make an Acquisition Proposal directly to the Special Committee in accordance with the terms of this Section 7.2); (iii) during the period from and after the date hereof and until the earlier of the Effective Time and the termination of this Agreement in accordance with Article X, not, directly or indirectly, (A) solicit, initiate, knowingly encourage or knowingly facilitate the submission of an Acquisition Proposal or any of its inquiry, proposal, discussion, offer or request that would reasonably be expected to result in an Acquisition Proposal, (B) furnish information, or afford access to the business, employees, officers, directors contracts, properties, assets, books and records or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees aspects of the Company and its Subsidiaries, collectively referred to herein as the “Company Representatives”)any Person (other than Parent, directly Merger Sub or indirectly: (iany designees of Parent or Merger Sub) solicitin connection with, initiate or knowingly take any action that would reasonably be expected to encourage or facilitate the making of result in, an Acquisition Proposal, , in any case, with the intent to induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate an Acquisition Proposal or any inquiry, proposal, discussion, offer or request that would reasonably be expected to result in an Acquisition Proposal or (iiC) enter into, continue or otherwise participate in any discussions or negotiations with any Person (other than Parent, Merger Sub or furnish any information designees of Parent or Merger Sub) with respect to an Acquisition Proposal or any inquiry, proposal, discussion, offer or request that would reasonably be expected to result in an Acquisition Proposal; provided, that, the Company and its Subsidiaries and its and their Representatives may (x) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person or group of Persons (including by requesting that such terms and conditions be conveyed in writing) solely to determine whether such inquiry or proposal constitutes or would reasonably be expected to result in a Superior Proposal or (y) inform a Person or group of Persons that has made an Acquisition Proposal of the provisions of this Section 7.2; and (iv) during the period from and after the date hereof and until the earlier of the Effective Time and the termination of this Agreement in accordance with Article X, not, directly or indirectly, (A) approve, agree to, adopt, recommend or submit or agree to submit to a vote of its shareholders any Acquisition Proposal, or propose publicly to do any of the foregoing, (B) fail to make, or withdraw, or materially and adversely, qualify, modify or amend, the Company Board Recommendation (or recommend an Acquisition Proposal), (C) fail to include the Company Board Recommendation in the Proxy Statement, (D) make any public statement, filing or release inconsistent with the Company Board Recommendation, (E) fail to publicly reaffirm the Company Board Recommendation in connection with the public disclosure by the Company of an Acquisition Proposal (other than of the type referred to in the following clause (F)) by any Person other than Parent and Merger Sub within three (3) Business Days after Parent so requests in writing; provided, that, Parent may make such a request no more than once in respect of such public disclosure of an Acquisition Proposal except in connection with any material amendment of such Acquisition Proposal (and no more than once in connection with each such amendment), (F) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act after the commencement of such Acquisition Proposal (it being understood that the Company Board (or a committee thereof, including the Special Committee) may refrain from taking a position with respect to an Acquisition Proposal until the close of business on the 10th Business Day after the commencement of such Acquisition Proposal), (G) commit or agree to do any of the foregoing (any of the foregoing clauses (A) through (G) in this subsection (iv), a “Company Adverse Recommendation Change”), or (H) enter into any letter of intent, agreement in principle, term sheet, expense reimbursement provision, merger agreement, acquisition agreement, option agreement or other similar instrument (except for Acceptable Confidentiality Agreements) relating to or providing for any Acquisition Proposal or a potential Acquisition Proposal. It is agreed that any breach of the restrictions set forth in this Section 7.2 by any Affiliate of the Company or any Representative of the Company (acting as such) shall constitute a breach of this Section 7.2 by the Company. (b) Notwithstanding anything to the contrary in Section 7.2(a), if following the date hereof and prior to the date on which the Company Shareholder Approval has been obtained the Company or any of its Subsidiaries or any of its or their Representatives receives a bona fide unsolicited written Acquisition Proposal (which Acquisition Proposal did not result from a breach of Section 7.2(a)) from any Person or group of Persons, (i) the Company, the Special Committee and their respective Representatives may, prior to (but not after) the date on which the Company Shareholder Approval has been obtained, furnish information, and afford access to the business, employees, officers, contracts, properties, assets, books and records or other aspects of the Company and its Subsidiaries, to the Person or group of Persons who made such Acquisition Proposal and such Person’s or group’s Representatives pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (provided, that, the Company has previously furnished, made available or provided access to Parent to any third party such information, or substantially concurrently (and in connection any event within twenty-four (24) hours thereafter) does so); and (ii) the Special Committee and its Representatives may enter into or otherwise participate in any discussions or negotiations with an any Person or group and its Representatives (including solicitations of revised Acquisition Proposals) regarding such Acquisition Proposal,, in each case of the foregoing sub-clauses (i) and (ii), if the Special Committee has determined in good faith (after consultation with its outside financial advisors and legal counsel), that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. (iiic) take Reasonably promptly (and in any action to render event within forty-eight (48) hours) following receipt of any Acquisition Proposal from and after the date of this Agreement, the Company Rights or Section 203 shall advise Parent in writing of Delaware Law inapplicable to any transaction included in the definition receipt of such Acquisition Proposal, and a summary of the material terms and conditions of such Acquisition Proposal (including, in each case, the identity of the Person making any such Acquisition Proposal), and the Company shall as reasonably promptly as practicable provide to Parent a complete and unredacted copy of such Acquisition Proposal and all related material transaction documentation (including drafts) (subject to customary redactions of any debt financing documents). In addition, the Company shall keep Parent reasonably informed in all material respects on a reasonably current basis of the status and terms and conditions (including amendments or grant any waiver or release under any standstill or similar agreement with respect to any class proposed material amendments to) of equity securities such Acquisition Proposal and none of the Company or any of its SubsidiariesSubsidiaries or any of their Representatives will, or (iv) approve or after the date of this Agreement, enter into any agreement that would prohibit them from providing such information or the information contemplated by this Section 7.2(c) to Parent. (including an agreement in principled) Notwithstanding anything herein to the contrary, letter of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. Notwithstanding the foregoing, if at any time prior to the Acceptance Date, date on which the Company Shareholder Approval has been obtained, (i) if (A) the Company receives a bona fide unsolicited written Acquisition Proposal (which Acquisition Proposal did not result from a material breach of Section 7.2(a)) that was not solicited on or the Special Committee determines in good faith, after consultation with its outside financial advisors and legal counsel, constitutes a Superior Proposal, and (B) the date Special Committee determines in good faith, after consultation with outside counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of this Agreement their fiduciary duties under applicable Law, then each of the Company Board (upon the recommendation of the Special Committee) and the Special Committee may make a Company is in compliance with Adverse Recommendation Change; provided, that, neither the Company Board or the Special Committee may make a Company Adverse Recommendation Change pursuant to this Section 7.04, 7.2(d)(i) unless: (1) the Company and Board (or any committee thereof, including the Special Committee) shall have first provided prior written notice (a “Company Representatives may contact Notice”) to Parent, at least four (4) Business Days in advance, of the third party or parties making such Acquisition Proposal solely Company’s intention to take any action permitted under this Section 7.2(d)(i), which Company Notice shall, if applicable, specify the reasons for the purpose of clarifying proposed Company Adverse Recommendation Change and, if applicable, the terms and conditions thereof of any Superior Proposal (including the identity of the Person making such Superior Proposal) and provide complete and unredacted copies of all related transaction documentation (subject to customary redactions of any debt financing documents) (it being agreed that the provision of such Company Notice shall not constitute a Company Adverse Recommendation Change) to enable Parent to propose revisions to the terms of this Agreement in such a manner that would obviate the need for taking such action; and (2) prior to making a Company Adverse Recommendation Change in response to a Superior Proposal, the Special Committee shall have, and shall have used reasonable best efforts to cause its Representatives to, during such four (4) Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, (it being understood that neither the Company Board or the Special Committee may make a Company Adverse Recommendation Change in response to a Superior Proposal unless the Special Committee reaffirms in good faith (x) after consultation with its outside financial advisors and legal counsel that such Acquisition Proposal continues to constitute a Superior Proposal even if the adjustments to the terms and conditions of this Agreement proposed by Parent in a written offer (if any) were to be given effect and (y) after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law). In the event of any material revisions to an Acquisition Proposal constituting a Superior Proposal, the Company Board (or any committee thereof, including the Special Committee) shall be required to deliver a new Company Notice to Parent and to comply with the requirements of Directors this with respect to such new Company Notice, except that references to the four (4) Business Day period above shall be deemed to be references to a two (2) Business Day period; or (ii) if in response to an Intervening Event, the Special Committee determines in good faith (after considering consultation with its outside financial advisors and legal counsel) that the advice failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, then each of the Company Board (upon the recommendation of the Special Committee) and the Special Committee may make a Company Adverse Recommendation Change; provided, that, neither the Company Board or the Special Committee may make a Company Adverse Recommendation Change pursuant to this Section 7.2(d)(ii) unless: (1) the Company Board (or any committee thereof, including the Special Committee) shall have first provided prior written notice to Parent at least four (4) Business Days in advance of the Company’s intention to effect a Company Adverse Recommendation Change pursuant to this Section 7.2(d)(ii), which notice shall include reasonably sufficient information about the Intervening Event to enable Parent to propose revisions to the terms of this Agreement in such a manner that would obviate the need for taking such action; and (2) prior to making a Company Adverse Recommendation Change, the Special Committee shall have, and shall have used reasonable best efforts to cause its Representatives to, during such four (4) Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that the Special Committee can determine in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would not reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law (it being understood that neither the Company Board or the Special Committee may make a Company Adverse Recommendation Change in response to an Intervening Event unless the Special Committee reaffirms in good faith, after consultation with its outside legal counsel, that even if the adjustments to the terms and financial advisorsconditions of this Agreement proposed by Parent (if any) that such Acquisition Proposal is or were to be given effect, the failure to make a Company Adverse Recommendation Change would be reasonably likely be expected to lead be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law). (e) Nothing contained in this Agreement shall prevent the Company or the Company Board (or any committee thereof, including the Special Committee) from issuing a “stop, look and listen” communication pursuant to a Superior ProposalRule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to the Company’s shareholders if, in the good faith judgment of the Special Committee, after consultation with its outside legal advisors, failure to make such disclosure would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided, that, this Section 7.2(e) shall not permit the Company, the Company may:Board or the Special Committee to make a Company Adverse Recommendation Change except as expressly set forth in Section 7.2(d).

No Solicitation; Change of Recommendation. (a) Neither the The Company nor any of agrees that it shall, and shall cause its Subsidiaries shallto, nor and shall the Company or any of direct and use its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company its and its Subsidiaries’ directors, collectively referred to herein as the officers, employees, advisors and agents (collectively, “Company Representatives”)) to, immediately cease all existing discussions or negotiations with any person (other than Parent and its affiliates and Representatives) conducted heretofore with respect to any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal. Except as expressly permitted in this Section 6.7, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, and shall cause its Subsidiaries not to, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: , (i) solicit, initiate or knowingly take encourage any action to encourage or facilitate the making of an Acquisition Proposal, , (ii) enter into, or otherwise participate in any discussions (except for the limited purpose of notifying such person of the existence of the provisions of this Section 6.7) or negotiations regarding any Acquisition Proposal, (iii) enter into any agreement regarding any Acquisition Proposal or Alternative Transaction, (iv) furnish to any person any information concerning the Company, or any access to the properties, books and records of the Company and its Subsidiaries, in connection with any Acquisition Proposal, or (v) propose, agree or publicly announce an intention to take any of the foregoing actions or any other action which would reasonably be expected to lead to an Acquisition Proposal. The Company shall use commercially reasonable efforts to cause all Persons other than Parent, Parent’s Representatives and the Company’s Representatives who have been furnished confidential information regarding the Company in connection with the solicitation of or discussions regarding an Acquisition Proposal within the twelve (12) months prior to the date hereof promptly to return or destroy such information. Except as permitted by this Section 6.7, the Company agrees not to, and to cause its Subsidiaries not to, release any third party from, and agrees to enforce, the confidentiality and standstill provisions of any agreement to which the Company or its Subsidiaries is a party that remains in effect as of the date hereof, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any Person to make an Acquisition Proposal. (b) Notwithstanding anything to the contrary contained in this Section 6.7, if at any time after the date hereof and prior to obtaining the Company Stockholder Approval, the Company or any of its Subsidiaries, or any of its or their respective Representatives, having each theretofore complied with the terms of Section 6.7(a), receives a bona fide, unsolicited written Acquisition Proposal, the Company, the Company Board and their respective Representatives may engage in negotiations and discussions with, and furnish any information and other access (so long as all such information and access has previously been made available to Parent or is made available to Parent prior to or concurrently with respect the time such information or access is made available to such person) to, any person making such Acquisition Proposal and its Representatives if, and only if, the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that (i) such Acquisition Proposal is or is reasonably capable of becoming a Superior Proposal and (ii) the failure of the Company Board to furnish such information or access or enter into such discussions or negotiations would reasonably be expected to be a violation of its fiduciary duties to the stockholders of the Company under applicable Law; provided that prior to furnishing any material nonpublic information, the Company shall have received from the person making such Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such person as the Confidentiality Agreement is on Parent (excluding the “standstill” provisions thereof and except as otherwise contemplated by this Agreement), which confidentiality agreement shall not prohibit the Company from complying with the terms of this Section 6.7. The Company will promptly, and in any event within one business day, (x) notify Parent in writing of the receipt of such Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to any third party in connection with an Acquisition Proposal, (iii) take any action to render the Company Rights properties, books or Section 203 of Delaware Law inapplicable to any transaction included in the definition of Acquisition Proposal or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities records of the Company or any of its SubsidiariesSubsidiaries by any Person that has made, oror to the Company’s knowledge may be considering making, an Acquisition Proposal and (y) communicate the material terms of such Acquisition Proposal to Parent, including as they may change upon any modification or amendment to the terms thereof. The Company will keep Parent reasonably apprised of the status of and other matters relating to any such Acquisition Proposal on a timely basis. (ivc) Except as expressly permitted by this Section 6.7, neither the Company nor the Company Board shall (i)(A) withdraw, modify or qualify, or publicly propose to withdraw, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation or (B) approve or recommend, or publicly propose to approve or recommend, to the stockholders of the Company any Acquisition Proposal or Alternative Transaction or (ii) authorize, approve, recommend or declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow the Company or any of its Subsidiaries to enter into any agreement (including an agreement in principle, letter of intent, term sheet memorandum of understanding, merger agreement, acquisition agreement, option agreement or other similar instrument) agreement with respect to, or that is intended to an or would reasonably be expected to lead to, any Acquisition Proposal. Proposal (other than a confidentiality agreement referred to in Section 6.7(b) pursuant to and in accordance with the limitations set forth therein) (any action described in this Section 6.7(c) being referred to as a “Change of Recommendation”). (d) Notwithstanding anything to the foregoingcontrary in this Agreement, if at any time prior to obtaining the Acceptance DateStockholder Approval, the Company Board may make a Change of Recommendation, if (A) the Company has complied with the terms of this Section 6.7, (B) the Company Board receives a an unsolicited bona fide fide, written Acquisition Proposal from any person that was is not solicited on or after the date of this Agreement withdrawn and (C) the Company is Board determines in compliance good faith, after consultation with this Section 7.04its independent financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal; provided that: (i) the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure of the Company Board to take such action would reasonably be expected to be a violation of its fiduciary duties to the stockholders of the Company under applicable Law; and (ii) (1) the Company and Company Representatives provides Parent prior written notice at least three business days (or such longer period as it may contact be extended upon the third party modification or parties making such amendment of the Acquisition Proposal solely for as contemplated below) prior to taking such action, which notice shall state that the purpose of clarifying Company Board has received a Superior Proposal and, absent any revision to the terms and conditions thereof and (2) if the Board of Directors determines in good faith (after considering the advice of its outside legal and financial advisors) that such Acquisition Proposal is or would be reasonably likely to lead to a Superior Proposalthis Agreement, the Company may:Board has resolved to effect a Change of Recommendation, which notice shall specify the basis for such Change of Recommendation or termination, including the material terms of the Superior Proposal (a “Notice of Superior Proposal”) (it being understood that such Notice of Superior Proposal shall not in and of itself be deemed a Change of Recommendation);