Common use of No Solicitation of Competing Transaction Clause in Contracts

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), (i) directly or indirectly, encourage, solicitsolicit or facilitate any inquiries or proposals that constitute, or could reasonably be expected to lead to, an Acquisition Proposal or (ii) participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations concerning, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiriesany of its Affiliates or representatives) relating to, negotiations or an Acquisition Proposal; provided, however, that if, at any other action that could be expected to lead time prior to the making time of any proposals with respect acceptance of Shares for payment pursuant to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Offer, the Company or the Company's board 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 Rule 14d-9 or Rule l4e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders as, Directors determines in the good faith judgment of the board of directors of the Companyfaith, after consultation with outside counsel, that it is required necessary to do so in order to comply with its fiduciary duties to the Company's shareholders under applicable law; provided, that the Company may notmay, except as permitted in response to a Superior Proposal that was not solicited by it or that did not otherwise result from a breach of this Section 6.5(b5.5(a), and subject to providing prior written notice of its decision to take such action to Parent and compliance with Section 5.5(c), (x) furnish information with respect to the Company and any Company Subsidiary to any Person making a Superior Proposal pursuant to a confidentiality agreement containing terms no less favorable to the Company than the Confidentiality Agreement and (y) participate in discussions or negotiations regarding the Superior Proposal. (b) Except as set forth below in this subsection (b), neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement in a manner adverse to Parent or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this AgreementPurchaser, the Company will immediately cease any existing activities, discussions approval or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of recommendation by the Company stockholder approval Board of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties Directors or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, (ii) approve or recommend a Superior Proposalor propose to approve or recommend, any Acquisition Proposal or terminate this Agreement and (iii) enter into an a letter of intent, agreement in accordance with Section 8.1(c)(ii)principle, in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement acquisition agreement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).any

No Solicitation of Competing Transaction. (a) Neither ---------------------------------------- the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 5.5 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board of directors Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the board of directors of the CompanyBoard, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. (a) Neither the Optionors, the Company nor any Affiliate of the Company Subsidiary shall (and each of the Optionors, the Company and the Company Subsidiaries shall cause the instruct its respective officers, directors, employees, representatives and agents of the Companyagents, each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, initiate or participate in discussions or initiate or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Optionee, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 or any other provision None of this Agreement shall prohibit the Optionors, the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the any Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or Subsidiary shall enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Optionors and the Company will shall immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding , and the foregoing, prior to receipt of Optionors and the Company stockholder approval shall request (or if any of them has the Merger contractual right to do so, demand) the return of all confidential documents, analyses, financial statements, projections, descriptions and adoption of this Agreement, other data previously furnished to others in connection with the Company may furnish information concerning its business, properties or assets Optionors’ efforts to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than sell the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior ProposalCompany. The Company will promptly (and in any event within 24 hours) or the Optionors shall immediately notify the Parent Optionee of the existence of any proposal or inquiry received by the Company, and the Company shall immediately communicate to Optionee the terms of any proposal or inquiry which it may receive (and shall immediately provide to Optionee copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(ainquiry) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentinquiry. (b) Except as set forth in this Section 6.5(b), neither Neither the Company's board Company Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in manner adverse to Optionee, the approval by such Company Recommendation. Notwithstanding the foregoing, prior to receipt Board of the Company stockholder approval of the Merger and adoption Directors or any such committee of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, (ii) approve or recommend a Superior Proposalor propose to approve or recommend, any Acquisition Proposal or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit (iii) authorize the Company to enter into any agreement, arrangement or understanding agreement with respect to any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Acquisition Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company Maxygen shall (not, and the Company Maxygen shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, its Representatives not to), directly or indirectly, encourage: (i) Initiate, solicit, participate in or initiate or resume knowingly encourage any inquiries that would reasonably be expected to lead to an Alternative Proposal (including by way of making statements or furnishing information regarding the Business or disclosing non-public informationthe Contributed Assets or Assumed Liabilities); or (ii) Hold any discussions or enter into any agreements with, or take provide any action designed to facilitateinformation or respond to, any discussionsThird Party concerning an Alternative Proposal or cooperate in any way with, inquiriesagree to, negotiations assist or participate in, solicit, knowingly facilitate or knowingly encourage any other action that could be expected effort or attempt by any Third Party to lead do or seek any of the foregoing. If at any time prior to the making earlier of (A) the Closing and (B) the termination of this Agreement pursuant to its terms, Maxygen is approached in any manner by a Third Party (a “Competing Party”) concerning an Alternative Proposal, Maxygen shall promptly inform Bio regarding such contact, and furnish Bio with a copy of any proposals with respect to inquiry or concerning proposal, or, if not in writing, a description thereof, including the name of such Competing Party, and Maxygen shall keep Bio informed of the status and material terms of any Competing Transactionfuture notices, requests, correspondence or communications related thereto. Nothing contained in this Section 6.5 5.4 shall prohibit Maxygen or any of Maxygen’s Representatives from taking or restrict Maxygen’s or its Representatives’ ability to take any actions whatsoever related to any acquisition, asset sale, merger, consolidation, other provision business combination or similar transaction (or inquiry, proposal, discussions, negotiations with respect thereto or that the Board of Maxygen determines is reasonably likely to lead thereto) that does not include the Business or the Contributed Assets (such transactions referred to as a “Separate Transaction”). Furthermore, none of the actions specified in the immediately foregoing sentence shall be or be deemed to be a breach of this Agreement shall prohibit Section 5.4 regardless of whether any such actions subsequently result in an Alternative Proposal within the Company or meaning of this Section 5.4 (which Alternative Proposal, if any, shall, for the Company's board avoidance of directors from (i) taking and disclosing doubt, be otherwise subject to the Company's stockholders a position with respect terms of this Section 5.4) if such Alternative Proposal was not solicited by Maxygen or any of Maxygen’s Representatives, nor knowingly encouraged by Maxygen or any of Maxygen’s Representatives when responding to a tender or exchange offer by proposal regarding a third party pursuant to Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Separate Transaction. Upon execution For purposes of this Agreement, the Company will immediately cease party that “solicits” an Alternative Proposal shall be deemed to mean the party that first proposes an Alternative Transaction and not the party that receives such proposal provided such receiving party did not knowingly encourage the other party to make such proposal. (b) Subject to the provisions set forth in Section 5.4(c), nothing contained in this Section 5.4 or otherwise in this Agreement shall prohibit Maxygen’s Board or any existing activities, of Maxygen’s Representatives from (i) authorizing a communication with any party that is limited to making such party aware of the provisions of this Section 5.4; (ii) furnishing information to (but only subject to customary confidentiality requirements and limitations on use and provided that Maxygen (A) shall promptly provide Bio with copies of any non-public information concerning Maxygen provided to any other party if and to the extent such information has not otherwise been previously provided Bio and (B) shall take reasonable precautions to protect such non-public information) or entering into discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger Third Party that has made (and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted not withdrawn) a bona fide written proposal to Alternative Proposal and entering into discussions with such Third Party, if such Alternative Proposal was not solicited or knowingly encouraged by Maxygen in the board course of directors of discussions regarding a Separate Transaction and if Maxygen’s Board determines that the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, Alternative Proposal is or may is reasonably be expected likely to lead to a Superior Proposal. The Company will promptly ; and (and in any event within 24 hoursiii) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent extent required, taking and disclosing to Maxygen’s stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the material terms of any proposalExchange Act with regard to an Alternative Proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided disclosure to the ParentMaxygen’s stockholders if Maxygen’s Board determines that disclosure is required under applicable Legal Requirements. (bc) Except as set forth Maxygen shall not propose publicly to approve or recommend an Alternative Proposal unless Maxygen’s Board (after consultation with outside legal counsel and considering in this Section 6.5(b), neither good faith any counter-offer or proposal made by Bio pursuant to clause (iii) hereof) (i) determines that the Company's board of directors nor any committee thereof Alternative Proposal constitutes a Superior Proposal that requires such action in order to comply with Maxygen’s fiduciary duties to its stockholders under applicable Legal Requirements; (ii) shall effect have given Bio at least five (5) Business Days notice that it intends to approve or recommend such Alternative Proposal (which notice shall attach a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt copy of the Company stockholder approval most recent version of all transaction agreements to which Maxygen is proposed to be a party relating to the Alternative Proposal that Maxygen’s Board has determined to be a Superior Proposal) and an opportunity to meet with Maxygen, its financial advisor, and its outside legal counsel, all with the purpose and intent of enabling Bio and Maxygen to discuss and negotiate in good faith a modification of the Merger terms and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation conditions of this Agreement or (it being understood and hereby agreed that a new two (2) Business Days notice and negotiation period shall be required if the Merger, approve or recommend Alternative Proposal that Maxygen’s Board has determined to be a Superior ProposalProposal is revised in any material respect); and (iii) shall have determined that such Alternative Proposal continues to be a Superior Proposal after taking into consideration any counter-offer or proposal made by Bio. (d) Subject to the provisions of this Section 5.4, or terminate this Agreement and Maxygen’s compliance therewith in all material respects, the Parties acknowledge and agree that Maxygen may enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a for such Superior Proposal which it intends to acceptand terminate this Agreement immediately prior to, specifying the material terms and conditions or immediately after, such acceptance of such Superior ProposalProposal pursuant to the terms of Section 7.1(e) hereof. For the avoidance of doubt, and identifying the Person making Maxygen shall be required to terminate this Agreement prior to, or immediately after, its acceptance of such Superior Proposal as a condition to its entry into an agreement for such Superior Proposal. Nothing . (e) Maxygen shall not be permitted to take any of the actions specified in this Agreement shall permit clauses (b) through (d), above, with respect to any Alternative Proposal or any Third Party making an Alternative Proposal after the Company Stockholder Approval and prior to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment earlier of fees or reimbursement of expenses if (i) the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with Closing and (ii) the preceding sentence concurrently with termination of this Agreement pursuant to Agreement. (f) This Section 8.1(c)(ii)5.4 shall terminate upon the earlier of (i) the Closing and (ii) the termination of this Agreement.

No Solicitation of Competing Transaction. (a) Neither the The Company shall not, nor shall it authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to)Subsidiaries or Representatives, directly or indirectly, to (i) solicit, initiate or encourage, solicitor knowingly take any other action to facilitate (other than action reasonably necessary to enter into the confidentiality agreement contemplated by subclause (B) below), the submission of any Acquisition Proposal or (ii) participate in or initiate encourage any discussion or resume (including by way of furnishing negotiations regarding, or disclosing furnish to any person any non-public information)information with respect to, or knowingly take any action designed to facilitate, any discussions, inquiries, negotiations or any other action to facilitate (other than action reasonably necessary to enter into the confidentiality agreement contemplated by subclause (B) below) any inquiries or the making of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that, prior to the date of the Stockholders Meeting, the foregoing shall not prohibit the Company Board of Directors from furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an Acquisition Proposal that was not solicited by the Company in breach of this Section 5.5(a) or that did not otherwise result from a breach of this Section 5.5(a), if, and to the extent that, (A) the Company Board of Directors, after consultation with and having considered the advice of independent outside legal counsel, determines in good faith that such action is required for the Company Board of Directors to comply with its fiduciary obligations to the Company's stockholders under applicable Delaware law, (B) in connection with taking such action, the Company receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity on terms no less favorable to the Company than those contained in the Confidentiality Agreement, and (C) the Company Board of Directors concludes in good faith, after consultation with its independent financial advisor, that the Acquisition Proposal is a Superior Proposal. (b) The Company shall provide prompt (but in no event less than one business day after receipt of any Acquisition Proposal or inquiry) oral and written notice to Parent of (i) the receipt of any such Acquisition Proposal, and any modification or amendment to any Acquisition Proposal, or any inquiry which could reasonably be expected to lead to any Acquisition Proposal, (ii) the material terms and conditions of such Acquisition Proposal or inquiry, (iii) provided that such disclosure would not be in violation of a confidentiality agreement in effect on the date hereof, the identity of such person or entity making any such Acquisition Proposal or inquiry and (iv) the Company's intention to furnish information to, or enter into discussions or negotiations with, such person or entity. The Company shall continue to keep Parent informed, on a prompt basis, of all material developments affecting the status and terms of any proposals such Acquisition Proposal or inquiry or status of any such discussions or negotiations. The Company shall cease and cause to be terminated immediately all existing discussions or negotiations with any persons conducted heretofore with respect to or concerning any Competing Transaction. Nothing contained in Acquisition Proposal. (c) Neither the Company Board of Directors nor any committee thereof shall, except as expressly permitted by this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors from 5.5(c), (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 Rule 14d-9 or Rule l4e-2 under the Exchange Actwithdraw, or (ii) making such disclosure to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw qualify or modify, or propose to withdraw withdraw, qualify or modify, its position with respect this Agreement in a manner adverse to Parent or to Purchaser, the approval or recommendation of the Company Board of Directors or any committee thereof of the Merger or this Agreement, (ii) approve or recommend, or propose to approve or recommend recommend, any Competing transaction involving an Acquisition Proposal from a third party (an "Alternative Transaction"), or (iii) cause the Company to enter into any letter of intent, agreement with respect in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Competing Alternative Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, if prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementStockholders Meeting, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation Board of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board Directors determines in good faith, after it has received a Superior Proposal in full compliance in all respects with Sections 5.5(a), 5.5(b) and 5.11 and after consultation with its and having considered the advice of independent outside legal and financial advisors, is or may reasonably be expected counsel with respect to lead its fiduciary duties to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board stockholders under applicable Delaware law, that the withdrawal, qualification or modification of directors nor the approval of the Company Board of Directors or any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of or this Agreement, Agreement is required in order to comply with its fiduciary obligations to the Company's board stockholders under applicable Delaware law, the Company Board of directors Directors may withdraw or modify its (subject to this and the following sentences) inform the Company's stockholders that it no longer believes that the Merger is advisable and no longer recommends approval or recommendation of this Agreement or (a "Subsequent Determination") but only at a time that is after the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours fourth (4th ) business day following the Parent's receipt of written notice from the Company advising the Parent that the board Company Board of directors of the Company Directors has received a Superior Proposal which it intends to accept, specifying Proposal. Such written notice shall specify the material terms and conditions of such Superior ProposalProposal (and include a copy thereof with all accompanying documentation, and identifying if in writing), identify the Person making such Superior ProposalProposal and state that the Company Board of Directors intends to make a Subsequent Determination. Nothing in During such four (4) business day period, the Company shall provide an opportunity for the Parent to propose such adjustments to the terms and conditions of this Agreement shall permit as would enable the Company to enter into proceed with its recommendation to its stockholders without a Subsequent Determination; provided, however, that any agreementsuch proposed adjustment shall be at the discretion of Parent and Purchaser. Notwithstanding any other provision of this Agreement, arrangement the Company shall submit this Agreement to the holders of the Shares and the Series A Preferred Stock whether or understanding with any third party making or proposing to make a Competing Transaction providing for not the payment Company Board of fees or reimbursement of expenses if the Parent Directors makes a proposal Subsequent Determination. (d) Nothing contained in response this Section 5.5 shall prohibit the Company from taking and disclosing to such Superior Proposalits stockholders a position contemplated by Rule 14(e)-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if, other than in an agreement entered into in accordance the good faith judgment of the Company Board of Directors, after consultation with independent outside counsel, failure so to disclose would be inconsistent with applicable law; provided, however, neither the preceding sentence concurrently Company nor the Company Board of Directors nor any committee thereof shall, except as specifically permitted by Section 5.5(c), withdraw, qualify, or modify, or propose to withdraw, qualify or modify, its position with termination of respect to the Merger or this Agreement pursuant to Section 8.1(c)(ii)Agreement.

No Solicitation of Competing Transaction. (a) Neither From the Company date hereof until the earlier of the Closing Date and the date on which this Agreement is terminated in accordance with Article X, neither the Seller, nor any Affiliate of the Parent nor the Company shall (and the Company each of them shall cause their respective Representatives not to) solicit or encourage the officersinitiation or submission of interest, directorsoffers, employees, representatives and agents inquiries or proposals (or consider or entertain any of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume foregoing) from any Person (including by way of furnishing or disclosing non-public information), or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent providing any non-public information concerning the Company provided Company, its business or assets to any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(bPerson or otherwise), neither the Company's board initiate or participate in any negotiations or discussions, or enter into, accept or authorize any agreement or agreement in principle, or announce any intention to do any of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior with respect to receipt any expression of interest, offer, proposal to acquire, purchase, license, or lease (i) all or a substantial portion of the Company stockholder approval of Company’s or the Merger and adoption of this AgreementParent’s business or assets, or (ii) the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement ’s or the Merger, approve Parent’s capital stock or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)other securities, in each case at whether by stock purchase, merger, consolidation, combination, reorganization, recapitalization, purchase of assets, tender offer, lease, license or otherwise (any time after 48 hours following of the Parent's receipt foregoing, a “Competing Transaction”). Each of written notice from the Seller, the Parent and the Company advising shall, and each of them shall cause their respective Representatives to, immediately discontinue any ongoing discussions or negotiations (other than any ongoing discussions with Purchaser) relating to a possible Competing Transaction, and shall, to the extent permitted under any confidentiality or non-disclosure agreement existing as of the date hereof, promptly provide the Purchaser with notice of any written expression of interest, proposal or offer relating to a possible Competing Transaction that is received by such Party or any of its Representatives, which notice shall include copies of any such notice, inquiry or proposal, if in writing. The Seller represents and warrants to the Purchaser that (i) this Section does not and will not conflict with or violate any agreement, understanding or arrangement, whether written or oral, to which the Seller, the Parent that or the board Company, or any of directors their Affiliates are currently bound, and (ii) no breach or violation of the Company exclusivity provision of the Letter of Intent has received occurred or is continuing. Purchaser acknowledges that a Superior Proposal which it intends to accept, specifying Competing Transaction does not include the material terms potential divestiture of TFX and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing that nothing in this Agreement shall permit the Company Section 5.14 will limit any right for Seller to negotiate or enter into any agreementagreements with respect to the potential divestiture of TFX (so long as the Purchaser, arrangement or understanding the Parent, the Company and their post-Closing Affiliates are fully indemnified by the Seller with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(iirespect thereto).

No Solicitation of Competing Transaction. (a) Neither From the date hereof until the Termination Date, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in solicit or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors Company Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange ActAct (provided, that such tender or exchange offer was not solicited, encouraged, discussed, or continued in contravention of this Agreement and provided, further, that discussions with respect thereto were not required to cease or be terminated pursuant to this Agreement), or (ii) making such disclosure to the Company's stockholders asshareholders where the Company Board determines in good faith, after having consulted with outside counsel (who may be its regularly engaged outside counsel), that failure to make such disclosure would violate its fiduciary duties to the Company's shareholders under Applicable Law, provided, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; providedeach case, that the Company may not, except as permitted by Section 6.5(b)6.4(b) of this Agreement, withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. (a) Neither the Company nor any Principal Stockholder shall (and neither the Company nor any Principal Stockholder shall authorize or permit any Affiliate of the Company shall (and the Company shall cause the or any of its or their respective directors, officers, directors, employees, representatives and agents of the Companyagents, each Affiliate of the Company, and their respective including investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, solicit offers from, negotiate or enter into discussions with, knowingly encourage, solicitcontact, participate in respond to, enable or initiate provide financial or resume (including by way of furnishing operational or disclosing other non-public information), or take any action designed to facilitateinformation to, any discussions, inquiries, negotiations Person or group (other than Parent or any other action that could be expected to lead to of its Affiliates or representatives) for the making purpose of determining any proposals with respect to or concerning interest in acquiring any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 Securities or material assets of the Company, after consultation with outside counselwhether by investment, is required under applicable law; providedmerger, that tender offer, exchange offer, sale of assets or similar transactions involving the Company may not, except as permitted by Section 6.5(b), withdraw or modify, any division or propose to withdraw operating or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt principal business unit of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(aan “Acquisition Proposal”)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the immediately communicate to Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will promptly provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry), including the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentnegotiation [***]. (b) Except as set forth in this Section 6.5(b)Upon receipt of the Required Stockholder Vote, (i) neither the Company's board Board of directors Directors of the Company nor any committee thereof thereafter shall effect (A) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding manner adverse to Parent or Merger Sub, the foregoing, prior to receipt approval or recommendation by the Board of Directors of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation any committee thereof of this Agreement or the Merger, (B) approve or recommend a Superior or propose to approve or recommend, any Acquisition Proposal, or terminate (C) enter into any agreement with respect to any Acquisition Proposal, and (ii) no Principal Stockholder shall revoke or rescind his, her or its Stockholder Consent approving this Agreement and or the Merger or enter into an any agreement with respect to any Acquisition Proposal. (c) The parties hereto agree that irreparable damage would occur if the provisions of this Section 5.3 were not performed in accordance with Section 8.1(c)(ii)their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, in each case at without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors bond or other security, to prevent breaches of the Company has received a Superior Proposal which it intends provisions of this Section 5.3 and to accept, specifying enforce specifically the material terms and conditions provisions hereof in any court of such Superior Proposalthe United States or any state having jurisdiction, and identifying the Person making such Superior Proposalthis being in addition to any other remedy to which Parent may be entitled at law or in equity. Nothing [***] Certain information in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance document has been omitted and filed separately with the preceding sentence concurrently Securities and Exchange Commission. Confidential treatment has been requested with termination of this Agreement pursuant respect to Section 8.1(c)(ii)the omitted portions.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate None of the Company or any Principal Stockholder shall (and the Company shall cause not authorize or permit the officers, directors, employees, representatives and agents of the CompanyCompany and each affiliate, each Affiliate as defined in Rule 12b-2 promulgated under the 1934 Act (an "Affiliate") of the Company, and their respective including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, solicit offers from, negotiate with, encourage, solicitcontact, participate in respond to, enable or initiate provide financial or resume (including by way of furnishing operational or disclosing other non-public information), or take any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its affiliates or representatives) for the purpose of determining any other action that could be expected to lead to the making of interest in acquiring any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 Capital Stock or material assets of the Company, after consultation with outside counselwhether by merger, is required under applicable law; providedtender offer, that exchange offer, sale of assets or similar transactions involving the Company may notCompany, except as permitted by Section 6.5(b), withdraw division or modify, operating or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt principal business unit of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(aan "Acquisition Proposal")), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) immediately communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will promptly provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither None of the Company's board Board of directors Directors, nor any committee thereof thereof, shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding the foregoing, prior manner adverse to receipt of the Company stockholder approval of the Parent or Merger and adoption of this AgreementSub, the Company's board of directors may withdraw or modify its approval or recommendation by such Board of Directors or any such committee of this Agreement or the Merger, (ii) approve or recommend a Superior or propose to approve or recommend, any Acquisition Proposal, (iii) enter into any agreement with respect to any Acquisition Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)(iv) revoke or rescind his, in each case at any time after 48 hours following her or its Consent approving the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Merger Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither The Company shall not (nor shall the Company nor authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents or any of the Company, each Affiliate of the Company, and its or their respective Representatives, including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitatesolicit, initiate, seek, encourage or support any discussionsinquiry, inquiriesproposal or offer from, furnish any information to, or participate in any negotiations or discussions with any Person or group (other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 than Parent or any other provision of this Agreement shall prohibit the Company its Affiliates or the Company's board of directors from (iRepresentatives) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 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 regarding any acquisition of the Company, after consultation any merger or consolidation with outside counselor involving the Company, is required under applicable law; providedany equity financing of the Company, that or any acquisition of all or any material portion of the Company may notstock or assets of the Company, or any equity or, except as permitted by Section 6.5(bset forth on Schedule 5.1(e)(ii), debt issuance or financing, or any partnering or other similar transaction providing a third party with rights in or to any of the Company’s Intellectual Property (other than a non-exclusive license entered into in the ordinary course of business consistent with past practice) that may serve as an alternative to the Reorganization (any such inquiry, proposal or offer being an “Acquisition Proposal”). The Company will notify Parent in writing immediately (and no later than within 24 hours) upon receipt by the Company or any Representative of the Company of any Acquisition Proposal, any request for nonpublic information in connection with any Acquisition Proposal or for access to the properties, books or records of the Company by any Person that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall set forth the identity of the Person making the Acquisition Proposal, the material terms thereof and copies of any written Acquisition Proposal, and the Company shall immediately provide Parent with a further notice of regarding any revisions to the terms thereof. [***] (b) Upon receipt of the Required Stockholder Vote, neither the Board of Directors of the Company nor any committee thereof thereafter shall (A) withdraw or modify, or propose to withdraw or modify, its position with respect in a manner adverse to Parent or the Merger Subs, the approval or recommendation by the Board of Directors of the Company or any committee thereof of this Agreement or to the Merger or Merger, (B) approve or recommend, recommend or propose to approve or recommend recommend, any Competing TransactionAcquisition Proposal, or (C) enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, Acquisition Proposal. (c) The parties hereto agree that irreparable damage would occur if the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation provisions of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was 5.3 were not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement performed in accordance with Section 8.1(c)(ii)their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, in each case at without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors bond or other security, to prevent breaches of the Company has received a Superior Proposal which it intends provisions of this Section 5.3 and to accept, specifying enforce specifically the material terms and conditions provisions hereof in any court of such Superior Proposalthe United States or any state having jurisdiction, and identifying the Person making such Superior Proposal. Nothing this being in this Agreement shall permit the Company addition to enter into any agreement, arrangement other remedy to which Parent may be entitled at law or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii)equity.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Seller shall (and neither the Company nor any Seller shall authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents or any of the Company, each Affiliate of the Company, and its or their respective Representatives, including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitatesolicit, initiate, seek, encourage or support any discussionsinquiry, inquiriesproposal or offer from, furnish any information to, or participate in any negotiations or discussions with any Person or group (other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 than Purchaser or any other provision of this Agreement shall prohibit the Company its Affiliates or the Company's board of directors from (iRepresentatives) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule l4e-2 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 regarding any acquisition of the Company, after consultation any merger or consolidation with outside counselor involving the Company, is required under applicable law; providedany acquisition of all or any material portion of the stock or assets of the Company, any equity or debt issuance or financing, or any partnering or other similar transaction providing a third party with rights in or to any of the Company’s Intellectual Property that may serve as an alternative to or otherwise, defer, delay or preclude the consummation of the Acquisition (any such inquiry, proposal or offer being an “Acquisition Proposal”). The Company will notify Purchaser in writing immediately (and no later than within 24 hours) upon receipt by the Company may notor any Representative of the Company of any Acquisition Proposal, except as permitted any request for nonpublic information in connection with any Acquisition Proposal or for access to the properties, books or records of the Company by Section 6.5(b)any Person that informs the Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall set forth the identity of the Person making the Acquisition Proposal, the material terms thereof and copies of any written Acquisition Proposal, and the Company shall immediately provide Purchaser with a further notice of regarding any revisions to the terms thereof. (b) Neither the Board of Directors of the Company nor any committee thereof thereafter will (i) withdraw or modify, or propose to withdraw or modify, its position with respect in a manner adverse to Purchaser, the approval or recommendation by the Board of Directors of the Company or any committee thereof of this Agreement or to the Merger or transactions contemplated hereby, (ii) approve or recommend, recommend or propose to approve or recommend recommend, any Competing TransactionAcquisition Proposal, or (iii) enter into any agreement with respect to any Competing Transaction. Upon execution Acquisition Proposal. (c) No Seller shall (A) revoke or rescind his, her or its approval of this AgreementAgreement and the transactions contemplated hereby, the Company will immediately cease or (B) enter into any existing activities, discussions understanding or negotiations with any parties conducted heretofore agreement with respect to any Acquisition Proposal. Each Stockholder will vote all shares of Company Capital Stock beneficially owned by such Person against any Acquisition Proposal submitted to the foregoing. Notwithstanding the foregoing, prior to receipt Stockholders of the Company stockholder approval of during the Merger and adoption term of this Agreement. No Stockholder shall sell, transfer, assign or hypothecate any shares of Company Capital Stock or other Securities of the Company may furnish information concerning its business, properties or assets take any action that would result in any of the conditions to any corporation, partnership, Person the Closing not being satisfied or other entity or group pursuant to appropriate confidentiality agreements that would delay their satisfaction. (which shall be no more permissive than d) The parties hereto agree that irreparable damage would occur if the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation provisions of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was 5.3 were not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement performed in accordance with Section 8.1(c)(ii)their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Purchaser will be entitled to an immediate injunction or injunctions, in each case at without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors bond or other security, to prevent breaches of the Company has received a Superior Proposal which it intends provisions of this Section 5.3 and to accept, specifying enforce specifically the material terms and conditions provisions hereof in any court of such Superior Proposalthe United States or any state having jurisdiction, and identifying the Person making such Superior Proposal. Nothing this being in this Agreement shall permit the Company addition to enter into any agreement, arrangement other remedy to which Purchaser may be entitled at law or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii)equity.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Subsidiary or Affiliate of the Company shall (and the Company shall cause not authorize or permit the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectlyindirectly through any other Person, encourage, (i) solicit, participate in or initiate or resume encourage (including by way of furnishing or disclosing non-public information), or take any other action designed to facilitatefacilitate any Acquisition Proposal, any discussionsor afford access to the properties, inquiries, negotiations books or records of the Company or any other action that could be expected of its Subsidiaries to lead to the making of any proposals Person or group in connection with respect to any Acquisition Proposal, or (ii) participate in or initiate discussions or negotiations concerning any Competing Transaction. Nothing Acquisition Proposal; provided, however, that nothing contained in this Section 6.5 5.2 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Board of directors Directors from (iA) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (iiB) making such disclosure to the Company's stockholders as, in the good faith judgment of the board Company's Board of directors of the CompanyDirectors, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.2(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any letter of intent, agreement with respect to in principle or agreement concerning any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the date of the Company stockholder approval of the Merger and adoption of this Agreement, Special Meeting the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate customary confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity Person or group concerning a Competing Transaction if Superior Proposal if: (x) such entity Person or group has, on an unsolicited basis (and without violation otherwise in the absence of a breach by the Company of the provisions of this Section 6.55.2(a)), submitted a bona fide written proposal to the board Company's Board of directors of the Company Directors relating to any such transaction Superior Proposal which the board Company's Board of Directors determines in good faithfaith represents a superior transaction to the Merger and, in the good faith judgement of the Company's Board of Directors, after consultation with its outside legal and receipt of advice from the Company's financial advisors, for which financing is committed or may reasonably be expected which such entity or group has the financial capacity to lead consummate, and (y) in the good faith judgement of the Company's Board of Directors such action is required to discharge the fiduciary duties of Company's Board of Directors to the Company's stockholders under applicable law, determined only after receipt of (i) a written opinion from the Company's investment banking firm that the Superior ProposalExecution Copy Proposal is superior, from a financial point of view, to the Merger, and (ii) the legal advice of independent legal counsel to the Company that the failure to provide such information or access or to engage in such discussions or negotiations would cause the Company's Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law. The Company will promptly (and in any event within 24 hours) immediately notify the Parent Purchaser of the existence of any request for information, proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) immediately communicate to the Parent Purchaser the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will immediately provide to the Purchaser copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will keep the Purchaser informed of the status and details (including amendments or proposed amendments) of any such request or Acquisition Proposal. The Company will promptly provide to the Parent Purchaser any non-public information concerning the Company provided to any other party which was not previously provided to the ParentPurchaser. (b) Except as set forth below in this Section 6.5(bsubsection (b), neither the Company's board Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding manner adverse to the foregoingPurchaser, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, or recommendation by the Company's board Board of directors may withdraw Directors or modify its approval or recommendation of any such committee this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company (or any Subsidiary) to enter into any letter of intent, agreement in principle or agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, the Company's Board of Directors, in response to a Superior Proposal which was not solicited by the Company and which did not otherwise result from a breach of Section 5.2(a), may terminate this Agreement in order to enter into a letter of intent, agreement in principle or agreement with respect to a Superior Proposal, or terminate this Agreement but only at a time that is prior to the date of the Special Meeting and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time is after 48 hours the fifth (5th) business day following the ParentPurchaser's receipt of written notice from the Company advising the Parent Purchaser that the board Company's Board of directors of the Company Directors has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person person making such Superior Proposal. Nothing in this Agreement shall permit ; provided, however, that prior to such termination the Company shall have caused its financial and legal advisors to enter into any agreementnegotiate with the Purchaser; and, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response provided, further, however, that prior to such termination the Purchaser has not made an offer that the Company's Board of Directors determines in good faith after consulting with its financial advisors is at least as favorable to the stockholders of the Company as the Superior Proposal, other than in an agreement entered into in accordance with Proposal which the preceding sentence concurrently with termination of this Agreement pursuant Company proposes to Section 8.1(c)(ii)accept.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate None of the Company shall (Main Sellers or their respective Affiliates shall, and the Company Main Sellers shall use their respective best efforts, within their respective powers, to cause the Company, its Subsidiaries and their respective directors, officers, directors, employees, agents, representatives and agents of advisors (collectively, the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, “Company Representatives”) not to), directly or indirectly, encouragetake any action to encourage (by way of furnishing information or otherwise), solicitinitiate or engage in discussions or negotiations (whether preliminary or definitive) with, or provide any information to, participate in or initiate facilitate in any manner any effort or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transactionattempt by, or enter into any agreement with respect to with, any Competing Transaction. Upon execution of this Agreementperson, other than (x) Purchaser and its Affiliates, directors, officers, employees, agents, representatives and advisors (collectively, the “Purchaser Representatives”) or (y) a Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or Representative other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate a shareholder solely in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may manner that would not reasonably be expected to lead to a Superior Proposal. The Company will promptly frustrate the Transaction, in each case concerning (and in any event within 24 hours) notify the Parent each of the existence following, an “Acquisition Proposal”) (i) any direct or indirect acquisition of any proposal, discussion, negotiation or inquiry equity interests of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representativesits subsidiaries, and (ii) any merger, share exchange, recapitalization, spin-off, business combination or change of control of the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity its Subsidiaries or any similar transaction or (iii) any sale of all or a material portion of the party making such proposal assets or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning business of the Company provided or any of its Subsidiaries; provided, that, stock options or other party which was equity grants to employees (or prospective employees) and directors in the ordinary course of business and exercises thereof shall not previously provided to the Parentbe considered an Acquisition Proposal. (b) Except as set forth in this Section 6.5(b)Each Main Seller shall, neither the Company's board of directors nor any committee thereof and shall effect a Change in Company Recommendation. Notwithstanding the foregoinguse its best efforts, prior within its respective powers, to receipt of cause the Company stockholder approval and the Company Representatives to, immediately cease all discussions and negotiations with any person (other than Purchaser and the Purchaser Representatives) relating to an Acquisition Proposal and demand the return of all documents, analyses, financial statements and other data previously furnished to others in connection therewith. The Company shall promptly notify Purchaser upon receipt by the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement Company or the Merger, approve Company Representatives of any request or recommend a Superior proposal from any other Person relating to an Acquisition Proposal, or terminate provided that such notification shall include, to the extent this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)is possible without breaching any confidentiality obligations under binding contracts existing on the date hereof, in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the all material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement request or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii)proposal.

No Solicitation of Competing Transaction. (a) Neither From the date hereof until the Termination Date, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in solicit or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 SECTION 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's board of directors Company Board from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange ActAct (PROVIDED, that such tender or exchange offer was not solicited, encouraged, discussed, or continued in contravention of this Agreement and PROVIDED, FURTHER, that discussions with respect thereto were not required to cease or be terminated pursuant to this Agreement), or (ii) making such disclosure to the Company's stockholders asshareholders where the Company Board determines in good faith, after having consulted with outside counsel (who may be its regularly engaged outside counsel), that failure to make such disclosure would violate its fiduciary duties to the Company's shareholders under Applicable Law, PROVIDED, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; providedeach case, that the Company may not, except as permitted by Section 6.5(b)SECTION 6.4(b) of this Agreement, withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(aSECTION 6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. (a) Neither the The Company nor any Affiliate of the Company shall (and the Company shall cause Subsidiaries and Affiliates of the Company) will not, and the Company (and the Company Subsidiaries and Affiliates of the Company) will use their reasonable best efforts to ensure that their respective officers, directors, employees, representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agentsagents do not, directly or indirectly: (i) initiate, solicit or encourage, or take any action to knowingly facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal (as defined below) of the Company or any Company Subsidiary or Affiliate or an inquiry with respect thereto or (ii) in the event of an unsolicited written Takeover Proposal for the Company or any Company Subsidiary or Affiliate of the Company, engage in negotiations or discussions with, or provide any information or data to, any Person (other than Fremont or any of its Affiliates or representatives) relating to any Takeover Proposal. The Company shall notify Fremont as promptly as practicable of any inquiries, expressions of interest, (b) As used in this Agreement, "Takeover Proposal" when used in connection with the Company shall mean any tender or exchange offer involving the Company, any proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner 20% or more of the equity interest in, or 20% or more of the business or assets of, the Company, any proposal or offer with respect to any recapitalization or restructuring with respect to the Company or any proposal or offer with respect to any other transaction similar to any of the foregoing with respect to such Person or any Subsidiary of such Person other than pursuant to the Transactions). Notwithstanding the foregoing, a "Takeover Proposal" shall not to)include any repurchase of Shares by the Company which is consummated without the issuance, directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take to any action designed to facilitate, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making third party of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision equity securities of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and debt securities of the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary convertible into equity securities, whether by direct issuance, merger or any other transaction or series of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parenttransactions. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule Rules 14d-9 or Rule l4e-2 and 14e-2 under the Exchange Act, or (ii) making such disclosure to the Company's stockholders asif, in the good faith judgment of as and when the board of directors of the CompanyCompany determines in good faith, after consultation with outside counsel, that such disclosure is required in order to comply with their fiduciary duties to the Company's stockholders under applicable law; , provided, in each case, that the Company may not, except as permitted by Section 6.5(b6.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any and all existing activities, discussions or negotiations with any and all parties conducted heretofore with respect to any of the foregoingAcquisition Proposal. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. (a) Neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents Representatives of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 6.6 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Company Board of directors Directors from (i) taking and disclosing to the Company's stockholders shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's stockholders shareholders as, in the good faith judgment of the board Company Board of directors of the CompanyDirectors, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b6.6(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. (a) Neither After the Company nor any Affiliate Execution Date and prior to the earlier of the Company shall (Closing Date and the Company date as of which this Agreement is validly terminated by Purchaser or Seller in accordance with this Agreement, Seller shall cause the officers, directors, employees, representatives and agents of the Company, each Affiliate of the Companynot, and shall not authorize any of its Affiliates or their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to)Representatives, directly or indirectly, encourage, through any Representatives or otherwise (except as may be required by applicable Law) to: (a) solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information)initiate, or take any action designed to facilitatefacilitate the making, any discussions, inquiries, negotiations submission or any other action that could be expected to lead to the making announcement of any proposals with respect Acquisition Proposal to any Person other than Purchaser or concerning an Affiliate of Purchaser; (b) furnish any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit nonpublic information regarding Seller, the Company Project, the Project Assets or the Company's board terms of directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer transactions contemplated by a third party pursuant to Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease to any existing activities, Person other than Purchaser or an Affiliate of Purchaser in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal; or (c) engage in discussions or negotiations with any parties conducted heretofore Person other than Purchaser or an Affiliate of Purchaser with respect to any Acquisition Proposal or an inquiry or indication of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to interest that could lead to a Superior an Acquisition Proposal. The Company will promptly (and in any In the event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the CompanySeller, any Company Subsidiary of its Affiliates, or any of their respective representativesRepresentatives receives any Acquisition Proposal by any Person other than Purchaser or an Affiliate of Purchaser, Seller shall: (i) immediately notify Purchaser of receipt of such Acquisition Proposal; (ii) disclose the details of the Acquisition Proposal to Purchaser and provide copies of any written materials related thereto; (iii) comply with the covenants set forth in clauses (a), (b), and (c) of this Section V.12; and (iv) immediately inform any and all third parties making the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity Acquisition Proposal of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as covenants and prohibitions set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii)V.12.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, Company and each Affiliate of the Company, and their respective including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), ) or take any action designed to facilitate, facilitate any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 6.4 or any other provision of this Agreement shall prohibit the Company or the Company's 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 not solicited, encouraged, discussed, continued or failed to be ceased or terminated in contravention of this Agreement pursuant to Rule Rules 14d-9 or Rule and l4e-2 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 of the Company, after consultation with pursuant to advice from outside counsel, is reasonably expected to be required under applicable law; provided, PROVIDED that the Company may not, except as permitted by Section 6.5(b6.4(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementClosing, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a6.4(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Acquisition Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).if:

No Solicitation of Competing Transaction. 33 (a) Neither From the date hereof until the Effective Time or earlier termination of this Agreement, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, (i) knowingly encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or “group” (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or representatives and agents concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 5.5 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board of directors ’s Board from (i) taking and disclosing to the Company's ’s stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure to the Company's ’s stockholders as, in the good faith judgment of the board of directors of the CompanyBoard, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement (other than a confidentiality agreement as permitted by the last sentence of this paragraph) with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingforegoing and hereby represents and warrants to Parent and Purchaser that no such arrangements require the Company to make any payment (whether by way of reimbursement or otherwise) with regard to any such activities. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements that it may enter into (provided that such confidentiality agreement need not contain terms which shall be no more permissive than restrict the Confidentiality Agreement and shall permit ability of the disclosure contemplated by this Section 6.5(a)), Third Party to make a proposal to the Company Board of Directors) and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction an Acquisition Proposal if such entity or group has, has on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board Company Board of directors of the Company Directors relating to any such transaction an Acquisition Proposal which the board Board (after consultation with its financial advisor) determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to represents a Superior Proposal. The Company will shall promptly (and but in any no event within 24 hourslater than twenty-four (24) hours following receipt) notify the Parent of the existence of if any proposal, discussionoffer, negotiation inquiry or inquiry other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated with the Company in respect of an Acquisition Proposal, and shall, in any such notice to Parent, and to the extent such disclosure is not a breach of the type referred to fiduciary duties of the Board or in this Section 6.5(a) received by violation of any existing contractual obligations of the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and indicate the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationnegotiation and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a prompt basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. The Company will promptly provide to As of the Parent any non-public information concerning date hereof, the Company provided any shall cease, and shall cause the Subsidiaries and the officers, directors, employees, representatives and other party which was not previously provided agents of the Company and the Subsidiaries, to the Parentcease, all discussions, negotiations and communications with all such parties. (b) Except as set forth below in this Section 6.5(bsubsection (b), neither the Company's board Company Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change manner adverse to Parent or Purchaser, the approval or recommendation by such 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 Acquisition Proposal, (iii) enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement as permitted by the last sentence of the first paragraph of Section 5.5(a)), or (iv) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any Company Stock, (B) amend or grant any waiver or release or approve any transaction or redeem Rights under the Rights Agreement (except as provided in Company RecommendationSection 3.25), or (C) approve any transaction under Section 203 of the DGCL or Article X of the Company’s Certificate of Incorporation. Notwithstanding the foregoing, prior to receipt the time of acceptance for payment of Shares pursuant to the Offer, the Company stockholder approval Board of the Merger and adoption of this Agreement, the Company's board of directors Directors may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)respect to a Superior Proposal, in each case at any time after 48 hours the fourth (4th) business day following the Parent's ’s receipt of written notice from the Company advising the Parent that the board Board of directors of the Company Directors has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. , but only if the Company shall cause its financial and legal advisors to negotiate with Parent during such four business days to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein on such adjusted terms. (c) Nothing in this Section 5.5 shall (i) permit the Company to terminate this Agreement shall (except as specifically provided in Section 7.1 hereof), (ii) permit the Company to enter into any agreementagreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed by the Company that during the term of this Agreement, arrangement or understanding the Company shall not enter into any agreement with any third party making Person that provides for, or proposing to make in any way facilitates, an Acquisition Proposal (other than a Competing Transaction providing for confidentiality agreement as permitted by the payment last sentence of fees the first paragraph of Section 5.5(a)) or reimbursement (iii) affect any other obligation of expenses the Company under this Agreement. (d) Notwithstanding the foregoing provisions of this Section 5.5, if the Parent makes a proposal conditions of subparagraphs (a) and (b) of Section 5.5 have been satisfied and the Company then has the right to terminate this Agreement pursuant to Section 7.1(c)(ii), then the Company, in response to such Superior Proposal, other than in an agreement entered into in accordance connection with the preceding sentence concurrently termination by it of this Agreement pursuant to Section 7.1(c)(ii), may take any of the actions described in Section 5.5(b) contemporaneously with the termination of this Agreement pursuant to Section 8.1(c)(ii)7.1(c)(ii) and the payment to Parent of the fee described in Section 7.3.

No Solicitation of Competing Transaction. (a) Neither the Company Seller nor any Affiliate of the Company Seller shall (and the Company Seller shall cause the officers, directors, employees, representatives and agents of the Company, Seller and each Affiliate of the Company, and their respective Seller including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Purchaser, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 or any other provision of this Agreement Seller shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or not approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will Seller shall immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding foregoing and Seller shall request (or if Seller has the foregoingcontractual right to do so, prior demand) the return of all documents, analyses, financial statements, projections, descriptions and other data previous furnished to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets others in connection with Seller’s efforts to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by sell the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board Neither Seller’s Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding the foregoing, prior manner adverse to receipt of the Company stockholder approval of the Merger and adoption of this AgreementPurchaser, the Company's board approval by such Board of directors may withdraw Directors or modify its approval or recommendation any such committee of this Agreement or the MergerTransactions, (ii) approve or recommend a Superior Proposalor propose to approve or recommend, any Acquisition Proposal or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company (iii) authorize Seller to enter into any agreement, arrangement or understanding agreement with respect to any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Acquisition Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate 8.3 No Solicitation of the Company Competing Transaction Seller shall (immediately cease, and the Company shall cause the officers, directors, employees, it representatives and agents of the Company, each Affiliate of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not to), directly or indirectly, encourage, solicit, participate in or initiate or resume (including by way of furnishing or disclosing non-public information), or take any action designed to facilitateimmediately cease, any discussions, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or concerning any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any all existing activities, discussions or negotiations with any parties persons conducted heretofore with respect to any Competing Transaction (as hereinafter defined). At all times during the period commencing with the Effective Date and continuing until the earlier of (a) the foregoing. Notwithstanding Closing, or (b) the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption termination of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group Agreement pursuant to appropriate confidentiality agreements (which its terms, Seller shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))not, and may negotiate and participate in discussions and negotiations with such entity Seller shall cause its representatives not to, directly or group concerning a Competing Transaction if such entity indirectly, (i) initiate, solicit or group hasencourage (including by way of furnishing information regarding the Business or the Property or the Assumed Liabilities) any inquiries, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal or make any statements to the board of directors of the Company relating to any such transaction third parties which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to any proposal concerning the sale of Seller, the Business or the Property or the Assumed Liabilities (whether by way of merger, purchase of equity, purchase of assets or otherwise) (a Superior Proposal. The Company will promptly “Competing Transaction”); or (and ii) hold any discussions or enter into any agreements with, or provide any information or respond to, any third party concerning a proposed Competing Transaction or cooperate in any event within 24 hours) notify the Parent way with, agree to, assist or participate in, solicit, consider, entertain, facilitate or encourage any effort or attempt by any third party to do or seek any of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationforegoing. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case If at any time after 48 hours following prior to the Parent's receipt earlier of written notice from (x) the Company advising Closing or (y) the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(iiits terms, Seller is approached in any manner by a third party concerning a Competing Transaction (a “Competing Party”), Seller shall promptly inform Buyer regarding such contact and furnish Buyer with a copy of any inquiry or proposal, or, if not in writing, a description thereof, including the name of such Competing Party, and Seller shall keep Buyer informed of the status and details of any future notices, requests, correspondence or communications related thereto.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company SELLER shall not (and the Company SELLER shall cause the officers, directors, employees, representatives and agents of the Company, SELLER and each Affiliate of the Company, and their respective SELLER including investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than BUYER, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing TransactionAcquisition Proposal. Nothing contained in this Section 6.5 or any other provision of this Agreement SELLER shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 of the Company, after consultation with outside counsel, is required under applicable law; provided, that the Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or not approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement with respect to any Competing Transaction. Acquisition Proposal. (b) Notwithstanding Section 5.6(a) above, SELLER's Board of Directors shall not be prohibited from furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide Acquisition Proposal which SELLER's Board of Directors determines in good faith is more favorable from a financial point of view to SELLER's shareholders than the transactions contemplated by this Agreement (a "SUPERIOR PROPOSAL") so long as: (i) prior to furnishing such information to, or entering into discussions or negotiations with, such a Person, SELLER provides three (3) business days' advance written notice to BUYER to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person from whom SELLER shall have received an executed confidentiality agreement prior to furnishing such information, (ii) such unsolicited bona fide Superior Proposal is made by a third party that SELLER's Board of Directors determines in good faith has the good-faith intent to proceed with negotiations to consider, and the financial capability to consummate, such Superior Proposal, and (iii) SELLER's Board of Directors, after duly considering the written advice of outside legal counsel to SELLER, determines in good faith that such action is required for SELLER's Board of Directors to comply with its fiduciary duties to shareholders imposed by applicable law. (c) Upon execution of this Agreement, the Company will SELLER shall immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingforegoing and SELLER shall request (or if SELLER has the contractual right to do so, demand) the return of all documents, analyses, financial statements, projections, descriptions and other data previous furnished to others in connection with SELLER's efforts to sell the Assets. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which SELLER shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) immediately notify the Parent BUYER of the existence of any proposal or inquiry received by SELLER, including any Superior Proposal, and SELLER shall immediately communicate to BUYER the terms of any proposal or inquiry which SELLER may receive (and shall immediately provide to BUYER copies of any written materials received by SELLER in connection with such proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(ainquiry) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentinquiry. (bd) Except as set forth with respect to a Superior Proposal or otherwise in connection with SELLER's Board of Directors compliance with its fiduciary duties to shareholders imposed by applicable law (after SELLER's Board of Directors duly considers the written advice of outside legal counsel and determines in good faith that any such action described in clauses (i), (ii) or (iii) of this Section 6.5(bparagraph (d) is required for SELLER's Board of Directors to comply with such fiduciary duties), neither the CompanySELLER's board Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding the foregoing, prior manner adverse to receipt of the Company stockholder approval of the Merger and adoption of this AgreementBUYER, the Company's board approval by such Board of directors may withdraw Directors or modify its approval or recommendation any such committee of this Agreement or the Mergertransactions contemplated hereby, except as provided in Article IX, (ii) approve or recommend a Superior Proposalor propose to approve or recommend, any Acquisition Proposal or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company (iii) authorize SELLER to enter into any agreement, arrangement or understanding agreement with respect to any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Acquisition Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither During the period commencing on the date hereof until the earlier to occur of the termination of this Agreement pursuant to its terms and the Effective Time, the Company and its Subsidiaries shall not, nor will they authorize or permit any Affiliate of the Company shall (and the Company shall cause the officers, their respective officers or directors, employeesor any investment banker, representatives and agents attorney or other advisor or representative retained by any of the Companythem to, each Affiliate nor will they authorize any of the Company, and their respective investment bankers, financial advisers, attorneys, accountants and other agents, not Affiliates or employees to), directly or indirectly, encourage, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or initiate negotiations regarding, or resume (including by way of furnishing or disclosing non-public information)furnish to any Person any information with respect to, or take any action designed to facilitate, any discussions, inquiries, negotiations or any other action to knowingly facilitate any inquiries or the making of any proposal that could constitutes or may reasonably be expected to lead to the making of to, any proposals Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal (it being understood and agreed that informing any Person as to the existence of these provisions, or concerning requesting additional information regarding the terms and conditions of any Competing Acquisition Proposal from the Person making such Acquisition Proposal, without in each case providing additional information, shall not constitute a discussion or negotiation in violation of this Section 6.4(a)), (iv) subject to the terms of Section 7.1(b) hereof, approve, endorse or recommend any Acquisition Proposal, or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction. Nothing contained ; provided, however, that prior to the adoption and approval of this Agreement and the approval of the Merger by the requisite vote of the stockholders of the Company, nothing in this Agreement (including the first sentence of this Section 6.4(a)) shall prohibit the Company from furnishing information regarding the Company or any of its Subsidiaries to, or entering into a confidentiality agreement with, or entering into or conducting discussions or negotiations with, any Person or Group in response to a Superior Proposal submitted by such Person or Group (and not withdrawn) if (v) neither the Company nor any representative of the Company and its Subsidiaries shall have violated any of the restrictions set forth above in this Section 6.5 6.4, (w) the board of directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such action is required for the board of directors of the Company to comply with its fiduciary obligations to the Company's stockholders under the DGCL, (x) three business days prior to furnishing any such information to, or entering into discussions or negotiations with, such Person or Group, the Company gives Parent written notice of the identity of such Person or Group and of the Company's intention to furnish information to, or enter into discussions or negotiations with, such Person or Group, (y) the Company receives from such Person or Group an executed confidentiality agreement at least as restrictive as the Confidentiality Agreement, and (z) contemporaneously with furnishing any other provision of such information to such Person or Group, the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent). In addition, nothing in this Agreement shall prohibit the Company or the Company's board of directors 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 Rule 14d-9 or Rule l4e-2 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure Act with regard to the Company's stockholders as, in the good faith judgment of the board of directors of the Company, after consultation with outside counsel, is required under applicable law; provided, that the an Acquisition Proposal. The Company may not, except as permitted by Section 6.5(b), withdraw or modify, or propose to withdraw or modify, and its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will Subsidiaries shall immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, the parties hereto understand and agree that any violation of the restrictions set forth in this Section 6.4(a) by any officer or director of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.4(a) by the Company. Notwithstanding In addition to the foregoing, the Company shall (i) provide Parent with at least forty-eight hours prior notice (or such lesser prior notice as provided to receipt the members of the Company stockholder approval board of directors of the Merger and adoption of this AgreementCompany, but in no event less than twelve hours unless the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a)), and may negotiate and participate in discussions and negotiations with such entity or group concerning have previously notified Parent of a Competing Transaction if such entity or group has, on an unsolicited basis and without violation prior meeting of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to consider such Superior Proposal) of any such transaction meeting of the board of directors of the Company at which the board determines of directors of the Company is reasonably expected to consider a Superior Proposal, and (ii) provide Parent with at least three Business Days prior written notice (or such lesser prior notice as provided to the members of the board of directors of the Company) of a meeting of the board of directors of the Company at which the board of directors of the Company is reasonably expected to recommend a Superior Proposal to the stockholders of the Company and together with such notice a copy of the proposed form of agreement, letter of intent or other definitive document containing the terms and conditions of such Superior Proposal. (b) In addition to the obligations of the Company set forth in Section 6.4(a), the Company shall advise Parent, as promptly as practicable, and in any event within twenty four hours, orally and in writing, of (i) any request for information which the Company reasonably believes is likely to lead to an Acquisition Proposal or, (ii) any Acquisition Proposal, or (iii) any inquiry with respect to or which the Company reasonably believes could lead to any Acquisition Proposal, the (iv) material terms and conditions of any such request, Acquisition Proposal or inquiry, and (v) the identity of the Person or Group making any such request, Acquisition Proposal or inquiry. The Company shall keep Parent informed in all material respects of the status and details (including material amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry. (c) Nothing in this Agreement shall prevent the board of directors of the Company from withholding, withdrawing, amending, modifying or changing its unanimous recommendation in favor of the adoption and approval of this Agreement and approval of the Merger if (i) a Superior Proposal is made to the Company and is not withdrawn, (ii) neither the Company nor any of its representatives shall have violated the terms of Section 6.4 hereof and the Company is not then in material breach of this Agreement, and (iii) the board of directors of the Company reasonably concludes in good faith, after consultation with its outside legal and financial advisorscounsel, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and that, in any event within 24 hours) notify the Parent light of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parent. (b) Except as set forth in this Section 6.5(b), neither the Company's board of directors nor any committee thereof shall effect a Change in Company Recommendation. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend a Superior Proposal, the withholding, withdrawal, amendment, modification or terminate this Agreement and enter into an agreement changing of such recommendation is required in accordance with Section 8.1(c)(ii), in each case at any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that order for the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying comply with its fiduciary obligations to the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding Company's stockholders under DGCL with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response respect to such Superior Proposal; provided, other than however, that prior to publicly withholding, withdrawing, amending, modifying or changing its recommendation in an agreement entered into in accordance with favor of the preceding sentence concurrently with termination adoption and approval of this Agreement and approval of the Merger, the Company shall have given Parent at least three (3) Business Days prior written notice (or such lesser prior notice as provided to the members of the board of directors of the Company) thereof and the opportunity to meet with the Company and its counsel. Nothing contained in this Section 6.4 shall limit the Company's obligation to hold and convene the Company Stockholders' Meeting (regardless of whether the unanimous recommendation of the board of directors of the Company shall have been withheld, withdrawn, amended, modified or changed pursuant to Section 8.1(c)(iihereto).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Principal Stockholder shall (and neither the Company nor any Principal Stockholder shall authorize or permit any Affiliate of the Company shall (and the Company shall cause the or any of its or their respective directors, officers, directors, employees, representatives and agents of the Companyagents, each Affiliate of the Company, and their respective including investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectly, solicit offers from, negotiate or enter into discussions with, knowingly encourage, solicitcontact, participate in respond to, enable or initiate provide financial or resume (including by way of furnishing operational or disclosing other non-public information), or take any action designed to facilitateinformation to, any discussions, inquiries, negotiations Person or group (other than Parent or any other action that could be expected to lead to of its Affiliates or representatives) for the making purpose of determining any proposals with respect to or concerning interest in acquiring any Competing Transaction. Nothing contained in this Section 6.5 or any other provision of this Agreement shall prohibit the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 Securities or material assets of the Company, after consultation with outside counselwhether by investment, is required under applicable law; providedmerger, that tender offer, exchange offer, sale of assets or similar transactions involving the Company may not, except as permitted by Section 6.5(b), withdraw or modify, any division or propose to withdraw operating or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt principal business unit of the Company stockholder approval of the Merger and adoption of this Agreement, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(aan “Acquisition Proposal”)), and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if such entity or group has, on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company relating to any such transaction which the board determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to a Superior Proposal. The Company will promptly (and in any event within 24 hours) notify the immediately communicate to Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will promptly provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry), including the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided any other party which was not previously provided to the Parentnegotiation [***]. (b) Except as set forth in this Section 6.5(b)Upon receipt of the Required Stockholder Vote, (i) neither the Company's board Board of directors Directors of the Company nor any committee thereof thereafter shall effect (A) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding manner adverse to Parent or Merger Sub, the foregoing, prior to receipt approval or recommendation by the Board of Directors of the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors may withdraw or modify its approval or recommendation any committee thereof of this Agreement or the Merger, (B) approve or recommend a Superior or propose to approve or recommend, any Acquisition Proposal, or terminate (C) enter into any agreement with respect to any Acquisition Proposal, and (ii) no Principal Stockholder shall revoke or rescind his, her or its Stockholder Consent approving this Agreement and or the Merger or enter into an any agreement with respect to any Acquisition Proposal. (c) The parties hereto agree that irreparable damage would occur if the provisions of this Section 5.3 were not performed in accordance with Section 8.1(c)(ii)their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, in each case at without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any time after 48 hours following the Parent's receipt of written notice from the Company advising the Parent that the board of directors bond or other security, to prevent breaches of the Company has received a Superior Proposal which it intends provisions of this Section 5.3 and to accept, specifying enforce specifically the material terms and conditions provisions hereof in any court of such Superior Proposalthe United States or any state having jurisdiction, and identifying the Person making such Superior Proposal. Nothing this being in this Agreement shall permit the Company addition to enter into any agreement, arrangement other remedy to which Parent may be entitled at law or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii)equity.

No Solicitation of Competing Transaction. (a) Neither From the date hereof until the Effective Time or earlier termination of this Agreement, neither the Company nor any Company Subsidiary or Affiliate of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, each Company Subsidiary and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, (i) knowingly encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or "group" (as defined in Section 13(d) of the Exchange Act) other than Parent and its affiliates, inquiries, negotiations or any other action that could be expected to lead to the making of any proposals with respect to or representatives and agents concerning any Competing Transaction. Nothing Acquisition Proposal, except that nothing contained in this Section 6.5 SECTION 5.5 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board of directors Board 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 Rule Rules 14d-9 or Rule l4e-2 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 of the CompanyBoard, after consultation with receiving advice from outside counsel, is required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(bSECTION 5.5(B), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement to the Offer or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any agreement (other than a confidentiality agreement as permitted by the last sentence of this paragraph) with respect to any Competing TransactionAcquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoingforegoing and hereby represents and warrants to Parent and Purchaser that no such arrangements require the Company to make any payment (whether by way of reimbursement or otherwise) with regard to any such activities. Notwithstanding the foregoing, prior to receipt the time of acceptance of Shares for payment pursuant to the Company stockholder approval of the Merger and adoption of this AgreementOffer, the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements that it may enter into (provided that such confidentiality agreement need not contain terms which shall be no more permissive than restrict the Confidentiality Agreement and shall permit ability of the disclosure contemplated by this Section 6.5(a)), Third Party to make a proposal to the Company Board of Directors) and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction an Acquisition Proposal if such entity or group has, has on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board Company Board of directors of the Company Directors relating to any such transaction an Acquisition Proposal which the board Board (after consultation with its financial advisor) determines in good faith, after consultation with its outside legal and financial advisors, is or may reasonably be expected to lead to represents a Superior Proposal. The Company will shall promptly (and but in any no event within 24 hourslater than twenty-four (24) hours following receipt) notify the Parent of the existence of if any proposal, discussionoffer, negotiation inquiry or inquiry other contact is received by, any information is requested from, or any discussions or negotiations are sought to be initiated with the Company in respect of an Acquisition Proposal, and shall, in any such notice to Parent, and to the extent such disclosure is not a breach of the type referred to fiduciary duties of the Board or in this Section 6.5(a) received by violation of any existing contractual obligations of the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives may receive and indicate the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationnegotiation and the terms and conditions of any proposals or offers or the nature of any inquiries or contacts, and thereafter shall keep Parent informed, on a prompt basis, of all material developments affecting the status and terms of any such proposals or offers or the status of any such discussions or negotiations. The Company will promptly provide to As of the Parent any non-public information concerning date hereof, the Company provided any shall cease, and shall cause the Subsidiaries and the officers, directors, employees, representatives and other party which was not previously provided agents of the Company and the Subsidiaries, to the Parentcease, all discussions, negotiations and communications with all such parties. (b) Except as set forth below in this Section 6.5(bsubsection (b), neither the Company's board Company Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change manner adverse to Parent or Purchaser, the approval or recommendation by such 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 Acquisition Proposal, (iii) enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement as permitted by the last sentence of the first paragraph of SECTION 5.5(A)), or (iv) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any Company Stock, (B) amend or grant any waiver or release or approve any transaction or redeem Rights under the Rights Agreement (except as provided in Company RecommendationSECTION 3.25), or (C) approve any transaction under Section 203 of the DGCL or Article X of the Company's Certificate of Incorporation. Notwithstanding the foregoing, prior to receipt the time of acceptance for payment of Shares pursuant to the Offer, the Company stockholder approval Board of the Merger and adoption of this Agreement, the Company's board of directors Directors may withdraw or modify its approval or recommendation of the Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)respect to a Superior Proposal, in each case at any time after 48 hours the fourth (4th) business day following the Parent's receipt of written notice from the Company advising the Parent that the board Board of directors of the Company Directors has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. , but only if the Company shall cause its financial and legal advisors to negotiate with Parent during such four business days to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein on such adjusted terms. (c) Nothing in this Section 5.5 shall (i) permit the Company to terminate this Agreement shall (except as specifically provided in SECTION 7.1 hereof), (ii) permit the Company to enter into any agreementagreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed by the Company that during the term of this Agreement, arrangement or understanding the Company shall not enter into any agreement with any third party making Person that provides for, or proposing to make in any way facilitates, an Acquisition Proposal (other than a Competing Transaction providing for confidentiality agreement as permitted by the payment last sentence of fees the first paragraph of SECTION 5.5(A)) or reimbursement (iii) affect any other obligation of expenses the Company under this Agreement. (d) Notwithstanding the foregoing provisions of this Section 5.5, if the Parent makes a proposal conditions of subparagraphs (a) and (b) of Section 5.5 have been satisfied and the Company then has the right to terminate this Agreement pursuant to SECTION 7.1(C)(II), then the Company, in response to such Superior Proposal, other than in an agreement entered into in accordance connection with the preceding sentence concurrently termination by it of this Agreement pursuant to SECTION 7.1(C)(II), may take any of the actions described in SECTION 5.5(B) contemporaneously with the termination of this Agreement pursuant to Section 8.1(c)(ii)SECTION 7.1(C)(II) and the payment to Parent of the fee described in SECTION 7.3.

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate affiliate, as defined in Rule 12b-2 promulgated under the 1934 Act (an "Affiliate") of the Company shall (and the Company shall cause the officers, directors, employees, representatives and agents of the Company, Company and each Affiliate of the Company, and their respective including, but not limited to, investment bankers, financial advisers, attorneys, accountants attorneys and other agentsaccountants, not to), directly or indirectly, encourage, solicit, participate in or initiate discussions or resume (including by way of furnishing or disclosing non-public information)negotiations with, or take provide any action designed to facilitateinformation to, any discussionsPerson or group (other than Parent, inquiries, negotiations any of its Affiliates or any other action that could be expected to lead to the making of any proposals with respect to or representatives) concerning any Competing Transaction. Nothing contained in this Section 6.5 proposal or any other provision offer to acquire all or a substantial part of this Agreement shall prohibit the business or properties of the Company or the Company's 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 Rule 14d-9 or Rule l4e-2 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 any capital stock of the Company, after consultation with outside counselwhether by merger, is required under applicable law; providedtender offer, that exchange offer, sale of assets or similar transactions involving the Company, division or operating or principal business unit of the Company may not, except as permitted by Section 6.5(b(an "Acquisition Proposal"), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing Transaction, or enter into any agreement with respect to any Competing Transaction. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt the date of the approval of this Agreement and the Merger by the shareholders of the Company stockholder approval of pursuant to the Merger and adoption of this AgreementConsent Solicitation (the "Shareholder Approval Date"), the Company may furnish information concerning its business, properties or assets to any corporation, partnership, Person person or other entity or group pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity or group concerning a Competing Transaction if an Acquisition Proposal if: (x) such entity or group has, has on an unsolicited basis and without violation of this Section 6.5, submitted a bona fide written proposal to the board of directors of the Company Board relating to any such transaction which the board Company Board determines in good faith, after consultation with represents a superior transaction to the Merger (a "Competing Proposal") and in the good faith judgment of the Company Board the person or entity making such Competing Proposal appears to have the financial means, or the ability to obtain the necessary financing to conclude such Competing Proposal; and (y) in the opinion of the Company Board such action is required to discharge the Company Board's fiduciary duties to the Company's shareholders under applicable law following receipt of advice from independent legal counsel to the Company that the failure to provide such information or access or to engage in such discussions or negotiations would result in a reasonable possibility that the Company Board would violate its outside legal and financial advisors, is or may reasonably be expected fiduciary duties to lead to a Superior Proposalthe Company's shareholders under applicable law. The Company will promptly (and in any event within 24 hours) immediately notify the Parent of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) immediately communicate to the Parent the material terms of any proposal, discussion, negotiation or inquiry which it, any Company Subsidiary or any of their respective representatives it may receive (and will immediately provide to Parent copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. The Company will promptly provide to the Parent any non-public information concerning the Company provided to any other party which was not previously provided to the Parent. (b) Except as set forth below in this Section 6.5(bsubsection (b), neither the Company's board of directors Company Board nor any committee thereof shall effect shall: (i) fail to include, withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendationmanner adverse to Parent, the approval or recommendation by such Board of Directors or any such committee of this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal, or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, prior to receipt of the Shareholder Approval Date, the Company stockholder approval of the Merger and adoption of this Agreement, the Company's board of directors Board may not include or may withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend any Acquisition Proposal which satisfies the requirements of each of subsection (x) and subsection (y) of Section 6.2(a) hereof (any such Acquisition Proposal, a "Superior Proposal"), or terminate this Agreement and enter into an agreement in accordance with Section 8.1(c)(ii)respect to a Superior Proposal, in each case at any time after 48 hours the fifth business day following the Parent's receipt of written notice from the Company advising the Parent that the board of directors of the Company Board has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person person making such Superior Proposal. Nothing in this Agreement shall permit the Company to enter into any agreement, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response to such Superior Proposal, other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant to Section 8.1(c)(ii).

No Solicitation of Competing Transaction. (a) Neither the Company nor any Affiliate of the Company Subsidiary shall (and the Company shall cause not authorize the officers, directors, employees, representatives and agents of the CompanyCompany or any Subsidiary, each Affiliate of the Companyincluding, and their respective but not limited to, investment bankers, financial advisersattorneys and accountants, attorneys, accountants and other agents, not to), directly or indirectlyindirectly through any other Person, encourage, (i) solicit, participate in or initiate or resume encourage (including by way of furnishing or disclosing non-public information), or knowingly take any other action designed to facilitatefacilitate any Acquisition Proposal, any discussionsor afford access to the properties, inquiries, negotiations books or records of the Company or any other action that could be expected Subsidiary to lead to the making of any proposals Person or group in connection with respect to any Acquisition Proposal, or (ii) participate in or initiate discussions or negotiations concerning any Competing Transaction. Nothing Acquisition Proposal; provided, however, that nothing contained in this Section 6.5 5.2 or any other provision of this Agreement hereof shall prohibit the Company or the Company's board Board of directors Directors or the Special Committee from (iA) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule Rules 14d-9 or Rule l4e-2 and 14e-2 promulgated under the Exchange Act, or (iiB) making such disclosure to the Company's stockholders as, in the good faith judgment of the board Company's Board of directors of Directors or the CompanySpecial Committee, after consultation with receiving advice from outside counsel, is reasonably expected to be required under applicable law; provided, provided that the Company may not, except as permitted by Section 6.5(b5.2(b), withdraw or modify, or propose to withdraw or modify, its position with respect this Agreement or to the Merger or approve or recommend, or propose to approve or recommend any Competing TransactionAcquisition Proposal, or enter into any letter of intent, agreement with respect in principle or agreement concerning any Acquisition Proposal, or (C) making inquiries reasonably designed to any Competing Transactiondetermine whether the Acquisition Proposal could reasonably be expected to constitute a superior transaction to the Merger from a financial point of view to the stockholders of the Company other than the Purchaser Stockholders and is reasonably capable of being funded and consummated. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to receipt of the Company stockholder approval of the Merger and adoption of this AgreementEffective Time, the Company may furnish information (including non-public information) concerning its business, properties or assets to any corporation, partnership, Person or other entity or group pursuant to appropriate customary confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement and shall permit the disclosure contemplated by this Section 6.5(a))agreements, and may negotiate and participate in discussions and negotiations with such entity Person or group concerning a Competing Transaction if an Acquisition Proposal if: (x) such entity Person or group has, on an unsolicited basis (and without violation otherwise in the absence of a breach by the Company of the provisions of this Section 6.55.2(a)), submitted a bona fide written proposal to the board Company, the Company's Board of directors of Directors or the Company Special Committee relating to any such transaction Acquisition Proposal which the board Special Committee determines in good faith, after consultation with its outside legal and financial advisors, is or may faith could reasonably be expected to lead constitute a superior transaction to the Merger from a Superior Proposalfinancial point of view to the stockholders of the Company other than the Purchaser Stockholders and is reasonably capable of being funded and consummated, and (y) in the good faith judgment of the Company's Board of Directors or the Special Committee such action is reasonably expected to be required to discharge its fiduciary duties to the Company's stockholders under applicable law, determined only after receipt of legal advice of legal counsel to the Company's Board of Directors or the Special Committee that the failure to provide such information or access or to engage in such discussions or negotiations may cause the Company's Board of Directors or the Special Committee to violate its fiduciary duties to the Company's stockholders under applicable law. The Company will promptly (and in any event within 24 hours) notify the Parent Purchaser of the existence of any proposal, discussion, negotiation or inquiry of the type referred to in this Section 6.5(a) Acquisition Proposal received by the Company, any Company Subsidiary or any of their respective representatives, and the Company will promptly (and in any event within 24 hours) communicate to the Parent Purchaser the material terms of any proposal, discussion, negotiation or inquiry Acquisition Proposal which it, any Company Subsidiary or any of their respective representatives it may receive and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiationproposal. The Company will promptly provide to keep the Parent Purchaser informed of the status and details (including amendments or proposed amendments) of any non-public information concerning the Company provided any other party which was not previously provided to the Parentsuch Acquisition Proposal. (b) Except as set forth in this Section 6.5(bsubsection (b), neither the Company's board Board of directors Directors nor any committee thereof shall effect (i) withdraw or modify, or propose to withdraw or modify, in a Change in Company Recommendation. Notwithstanding manner adverse to the foregoingPurchaser, prior to receipt of the Company stockholder approval of the Merger and adoption of this Agreement, or recommendation by the Company's board Board of directors may withdraw Directors or modify its approval or recommendation of any such committee this Agreement or the Merger, (ii) approve or recommend or propose to approve or recommend, any Acquisition Proposal, or (iii) cause the Company (or any Subsidiary) to enter into any letter of intent, agreement in principle or agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, the Company, in response to a Superior Proposal which did not otherwise result from a breach of Section 5.2(a), may terminate this Agreement in order to enter into a letter of intent, agreement in principle or agreement with respect to a Superior Proposal, or terminate this Agreement but only at a time that is prior to the Effective Time and enter into an agreement in accordance with Section 8.1(c)(ii), in each case at any time is after 48 hours the fifth (5th) Business Day following the ParentPurchaser's receipt of written notice from the Company advising the Parent Purchaser that the board of directors of the Company has received a Superior Proposal which it intends to accept, specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal. Nothing in this Agreement shall permit ; provided, however, that prior to such termination the Company shall have caused its financial and legal advisors to enter into any agreementnegotiate with the Purchaser; and, arrangement or understanding with any third party making or proposing to make a Competing Transaction providing for the payment of fees or reimbursement of expenses if the Parent makes a proposal in response provided, further, however, that prior to such Superior Proposaltermination the Purchaser has not made a bona fide written proposal to the Company, the Company's Board of Directors or the Special Committee that the Company's Board of Directors or the Special Committee determines in good faith after consulting with its legal and financial advisors is (i) reasonably capable of being funded and consummated, and (ii) at least as favorable to the stockholders of the Company other than in an agreement entered into in accordance with the preceding sentence concurrently with termination of this Agreement pursuant Purchaser Stockholders as the Superior Proposal which the Company proposes to Section 8.1(c)(ii)accept.