Common use of Other Proposals Clause in Contracts

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, representatives, agents and affiliates (including, without limitation, any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, “Responsible Parties”) shall have the right, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on From the date of this Agreement and continuing hereof until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Closing Date”), the Company and its Subsidiaries shall not, and shall not permit any of their respective officersRepresentatives to, directorsinitiate any contact with, employeessolicit, representativesencourage or enter into or continue any discussions, agents and affiliates (includingnegotiations, without limitation, understandings or agreements with any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, “Responsible Parties”) shall have the right, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company Third Party with respect to to, or furnish or disclose any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of regarding the Company or any of its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent that was furnished by or on behalf the Board of Directors of the Company and/or or the Special Committee reasonably determines based on the advice of its counsel that it is required to do so by virtue of its fiduciary obligations under applicable law, the Company may (i) in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to return or destroy any Qualified Third Party pursuant to a customary confidentiality agreement and discuss such information (and confirm destruction of) all such information. In but not any non-public information relating to the event of an exercise structure of the Company’s Merger or the other transactions contemplated hereby, other than any such information which the Company Board’s rights under clauses (i)demonstrates was independently developed solely by the Company and its Representatives) with such Qualified Third Party, (ii) or upon receipt of a Qualified Acquisition Proposal from a Qualified Third Party, participate in discussions and negotiations with such Qualified Third Party regarding such Qualified Acquisition Proposal (but not enter into any agreements with respect thereto except as permitted pursuant to the express terms of clause (iii) above and subject below) if each of the Overbid Negotiation Conditions is (b) In the event that either the Company or any of the Shareholder Parties shall directly or indirectly receive any offer, proposal or inquiry relating to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contraryan Acquisition Proposal, such exercise party shall notify CREC within one Business Day after the receipt of rights shall not constitute a breach of this Agreement by such offer, proposal or inquiry and shall, in any such notice to CREC, indicate the Company. For the avoidance of doubt, notwithstanding the commencement identity of the No-Shop Period Start Dateofferor and set forth all of the material terms of such offer, proposal or inquiry. The Company and the Shareholder Parties shall keep CREC fully informed of the status and details of any such offer, proposal or inquiry. (c) Without the prior written consent of CREC, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, modify or release any Excluded Third Party from any confidentiality or standstill agreement to which the Company is a party if such action would have the purpose or effect of permitting or facilitating the submission of an Acquisition Proposal by such Third Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:.

Other Proposals. (a) Notwithstanding anything to From the contrary contained in this Agreement, during Original Agreement Date until the period beginning on the date of this Agreement and continuing until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Closing Date”), the Company shall not, and shall use its Subsidiaries and their respective officersbest efforts to ensure that its Affiliates, directors, employees, representativesofficers, agents and affiliates or other representatives (including, without limitationbut not limited to, any investment banker, financial advisor, attorney or accountant retained by Company or any of its Subsidiariesaccountant) (collectively, “Responsible Parties”) shall have the rightdo not, directly or indirectlyindirectly initiate any contact with, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to to, or in connection with, or furnish or disclose any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regardingregarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, and affording access any Acquisition Proposal. Notwithstanding the foregoing, to the businessextent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal counsel, properties(i) the Company may, assetsin response to an unsolicited request therefor, booksfurnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, records if (A) the Company has complied fully and personnel ofin a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and its Subsidiaries negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to any Person pursuant the Purchaser (after compliance in full with each of the conditions precedent to one the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or more confidentiality agreements executed negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Person; provided Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly make available to Parent any material non-public information concerning advise the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate Purchaser in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none writing of the Company, nature of any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistancechange in the terms thereof), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1y) the Company Board (acting through shall have paid or shall have arranged for the Special Committee), after consultation with its outside legal counsel, determines in good faith that payment of the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser Termination Fee to the effect that it is furnishing such information to or entering into discussions or negotiations Purchaser in accordance with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event Section 9.03 and the Company Board shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (acting through z) the Special Committee), after consultation with Company shall have taken all action on its outside legal counsel, determines in good faith that part required to cause the failure Xxxxxxx Money Escrow Agent to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making deliver the Xxxxxxx Money Deposit to the Company’s stockholders any recommendation and related filing with Purchaser (the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines conditions set forth in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (iv), (iiw), (x), (y) or and (iiiz) above and subject being hereinafter collectively referred to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to as the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date"Overbid Termination Conditions"), the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations terminate this Agreement and obligations set forth therein) enter into an agreement with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including a Qualified Third Party with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:in connection with an Overbid

Other Proposals. (a) Notwithstanding anything to 5.6.1 Without the contrary contained in this Agreementprior written Consent of Parent, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Date”)Interim Period, the Company will not, and will not authorize or permit any of its Subsidiaries and or Affiliates or its or their respective officers, directors, employees, representativesstockholders, investment bankers, financial advisors, auditors, legal counsel, agents and affiliates other representatives (including, without limitation, any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, “Responsible PartiesRepresentatives”) shall have the rightto, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4), to indirectly (i) initiatediscuss, solicit and encouragepursue, whether publicly solicit, initiate or otherwiseknowingly, Transaction Proposals or take any action which would be reasonably expected to, encourage or facilitate (including by way of furnishing information) or take any inquiry other action to facilitate knowingly any inquiries or the making of any proposal which constitutes or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal)Third Party Acquisition Proposal from any Person (provided that, including by way of furnishing information (including non-public information and data) regardingif the Company receives, and affording access prior to the businessCompany Requisite Vote being obtained, properties, assets, books, records and personnel ofa bona fide Third Party Acquisition Proposal that did not result from a breach of this Section 5.6, the Company may contact the person who has made such Third Party Acquisition Proposal solely for purposes of requesting a clarification of any ambiguous terms and its Subsidiaries to conditions thereof (and not for purposes of negotiating or engaging in any Person pursuant to one discussions regarding or more confidentiality agreements executed by such Person; provided relating thereto) so that the Company shall promptly make available may inform itself about such Third Party Acquisition Proposal solely to Parent any material non-public information concerning the extent necessary to comply with the fiduciary duties of the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and Board under Applicable Law); (ii) engage in, enter into, continue, maintain engage in or otherwise participate in any discussions or negotiations with relating to or furnish to any Person or group of Persons any confidential information with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Transaction ProposalThird Party Acquisition Proposal (except to notify the third party of the existence of these provisions), or (iii) approve, recommended or publicly propose to approve or recommend, or enter into any Contract with respect to, agree to, approve or maintain or continue recommend any Third Party Acquisition Proposal 5.6.2 Notwithstanding anything to the contrary under this Section ‎5.6, the Company may, at any time prior to the time that the Company Requisite Vote is obtained: (a) engage in discussions or negotiate negotiations with a Third Party (and may furnish such Third Party information concerning the Company, its Subsidiaries or their respective businesses, properties or assets) that (without any individualsolicitation, corporationinitiation, partnershipencouragement, joint venturediscussion or negotiation, associationdirectly or indirectly, trustby or with the Company or the Representatives after the date hereof and without any other breach by the Company of its obligations under this Section ‎5.6) makes an unsolicited bona fide written Third Party Acquisition Proposal that the Company Board concludes constitutes (or is reasonably likely to result in) a Superior Proposal; provided that (1) the Company Board shall conclude in good faith, unincorporated organization after (x) consultation with, and taking into account the advice of, its outside legal counsel and financial advisor, that such Third Party Acquisition Proposal constitutes (or other entity is reasonably likely to result in) a Superior Proposal, (“Person”y) considering Applicable Law, and (z) consultation with, and taking into account the advice of, its outside legal counsel, that such action is necessary for the Company Board to act in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; manner consistent with its fiduciary duties under Applicable Law (provided, however, that nothing contained in this Agreement shall prohibit order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board (acting through or a committee thereof) may also consider and act on the Special Committeebasis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Applicable Law), (2) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing such information to or entering into discussions or negotiations with such Third Party, the Company receives from such Third Party an executed confidentiality agreement in substantially the form of the Confidentiality Agreement, provided that any Person that information provided to such Third Party has made also previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Third Party, and (and 3) the Company shall have fully complied with this Section ‎‎5.6 in all respects; (b) make a Company Adverse Recommendation Change; or (c) accept a Superior Proposal (which Superior Proposal did not withdrawn) result from a bona fide Transaction Proposal which was not directly or indirectly solicited in violation breach of this Section 6.4 and which ‎‎5.6) if the Company Board (acting through the Special Committee)concludes, after consultation with its financial advisors with, and taking into account the advice of outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law (provided, however, that in order to stockholders under applicable law and (2) prior determine the appropriate standards that would apply to taking such action fiduciary duties, the Company provides prompt notice to Purchaser Board (or a committee thereof) may also consider and act on the basis of the fiduciary duties owed by a board of directors to the effect shareholders of a company under Delaware Applicable Law), and which the Company Board has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and its outside counsel, constitutes a Superior Proposal; provided, however, that it the Company shall not execute a definitive agreement with respect to a Superior Proposal unless immediately thereafter the Company shall have terminated this Agreement pursuant to Section ‎7.1.8 hereof and has paid the amounts required under Section ‎7.2.2 hereof; and provided further that the Company may not terminate this Agreement as set forth above or make a Company Adverse Recommendation Change until after the fourth (4th) Business Day following receipt by Parent of written notice (a “Notice of Superior Proposal”) from the Company advising Parent that the Company Board intends to take such actions and specifying the reasons therefor, including the material terms and conditions of (and documents relating to) such Superior Proposal (and the identity of the Third Party making such Superior Proposal) that is furnishing the basis of the proposed action by the Company Board and a statement that the Company Board intends to terminate this Agreement pursuant to Section ‎7.1.8 or make such information to or entering into discussions or Company Adverse Recommendation Change, as applicable. If requested by Parent, the Company and its Representatives shall engage in good faith negotiations with Parent and its Representatives, for a period of 4 Business Days, to, among other things, amend this Agreement and the other Transaction Agreements in such Person a manner that (i) the Third Party Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal, and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the failure of the Company Board Recommendation if there exists to accept such a Superior Proposal or Intervening Event and the make such Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action Adverse Recommendation Change would no longer be inconsistent with its fiduciary duties under Applicable Laws (it being understood and agreed that (x) any amendment to stockholders under applicable law in connection with the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and a new 3 Business Day period, and (y) in determining whether to cause or Intervening Event; permit the Company to so terminate this Agreement or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Actmake such Company Adverse Recommendation Change, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through shall take into account any changes to the Special Committee)financial or other terms of this Agreement and the other Transaction Agreements proposed in writing by Parent to the Company in response to a Notice of Superior Proposal or otherwise, and the Company Board at the end of the negotiation period, after consultation with its with, and taking into account the advice of, outside legal counselcounsel and its financial advisor, determines shall have in good faith reaffirmed its determination that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded bona fide Third Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Acquisition Proposal constitutes a Superior Proposal). 5.6.3 The Company shall, shall and shall cause its Subsidiaries and shall use reasonable best efforts direct its Representatives to cause all Responsible Parties to, promptly immediately cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person Third Party conducted theretofore heretofore by the Company or any Responsible Parties its Representatives with respect to the foregoing foregoing, shall terminate data room access of all such Third Parties and shall use request the prompt return or destruction of all confidential information previously furnished in connection therewith. The Company shall (i) notify Parent in writing of any Third Party Acquisition Proposal received after the date hereof (including, the material terms and conditions of any such Third Party Acquisition Proposal and the identity of the Person making it), within forty-eight (48) hours of the receipt thereof, and (ii) keep Parent informed of the status and details of any such Third Party Acquisition Proposal and any material developments with respect to such Third Party Acquisition Proposal or request for information or other inquiry (including any material changes thereto). 5.6.4 Without derogating from the mechanism described above with respect to a Superior Proposal, during the Interim Period, the Company shall not terminate, amend, modify or waive any provision of any confidentiality or standstill Contracts to which it or any of its Subsidiaries is a party (i) with any Third Party that has made or has indicated that it is considering making a Third Party Acquisition Proposal, or (ii) outside the ordinary course of business, without the prior written Consent of Parent. Without derogating from the mechanism described above with respect to a Superior Proposal, during the Interim Period, the Company shall enforce, as permitted under Applicable Law, the provisions of any such Contracts, including, obtaining injunctions to prevent any breaches of such Contracts, and enforcing specifically the terms and provisions thereof in any court of competent jurisdiction. 5.6.5 Except as permitted by this Section ‎‎5.6 and under Applicable Law, the Company Board shall not (a) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Company Recommendation, (b) fail to include the Company Recommendation in the Proxy Statement, (c) publicly recommend or declare advisable any Third Party Acquisition Proposal, (d) adopt, authorize or approve any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement providing for any Third Party Acquisition Proposal, other than as permitted by Section ‎‎5.6.1, or (e) fail to publicly reaffirm the Company Recommendation within ten days after Parent’s request (any action described in the foregoing clauses (a) through (d) of this Section ‎‎5.6.4 being referred to as a “Company Adverse Recommendation Change”). 5.6.6 Notwithstanding anything in this Section 5.6 to the contrary, other than in connection with a bona fide Third Party Acquisition Proposal that constitutes a Superior Proposal in accordance with Section 5.6.2, at any time prior to the time that the Company Requisite Vote is obtained, the Company Board may make a Company Adverse Recommendation Change in response to a Company Intervening Event if the Company Board has determined in good faith after consultation with the Company’s outside legal counsel and financial advisors that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided further that prior to making such Company Adverse Recommendation Change, (A) the Company Board shall have given Parent at least three (3) Business Days’ prior written notice of its intention to take such action and a description of the reasons for the Company Adverse Recommendation Change (it being understood that any material change in respect of such Company Intervening Event shall require a new notice but with an additional two (2) Business Day (instead of three (3) Business Day) notice period, (B) the Company shall have negotiated, and shall have caused its Subsidiaries and shall have used its reasonable best efforts to cause any its Representatives to negotiate in good faith with Parent during such Person notice period after the giving of such notice to the extent Parent wishes to negotiate, to make such adjustments to the terms and conditions of this Agreement so that the need for making such Company Adverse Recommendation Change would be obviated, and (or C) at the end of such notice period, the Company Board shall have considered in good faith such adjustments and shall have determined in good faith, after consultation with its agents or advisors) outside legal counsel and financial advisor, that it is required to make such Company Adverse Recommendation Change in possession of non-public information in respect order to comply with its fiduciary duties to the shareholders of the Company or any as a result of its Subsidiaries that was furnished by or on behalf of the such Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:Intervening Event.

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. 11:59 p.m. (Eastern Time) on the 30th calendar day after the date of this Agreement May 31, 2014 (the “NoGo-Shop Period Start End Date”), the Company and its Subsidiaries and their respective officers, directors, employees, representatives, agents and affiliates (including, without limitation, any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, “Responsible Parties”) Representatives shall have the right, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4)Board, to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal)Takeover Proposals, including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements Acceptable Confidentiality Agreements executed by such PersonPerson (a copy of such Acceptable Confidentiality Agreement(s) to be promptly, and in any event within 24 hours, provided to Parent, for informational purposes); provided that the Company shall promptly simultaneously therewith make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent Parent, Merger Sub or its Responsible Partiestheir respective Representatives, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Takeover Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.45.2, from and after the NoGo-Shop Period Start End Date until the Effective Time or or, if earlier, the earlier termination of this AgreementAgreement in accordance with Article VIII, none of the CompanyCompany shall not, any of and shall cause its Subsidiaries, or any of Subsidiaries and its and their respective Responsible Parties, willSubsidiaries’ Representatives not to, directly or indirectly: (i) whether publicly or otherwise, initiate, solicit solicit, knowingly facilitate or knowingly encourage (including by way of furnishing providing non-public information or assistance)access to its employees, business, properties, assets, books or take records to initiate, solicit, knowingly facilitate or encourage a Takeover Proposal) the submission or announcement of any other action to facilitate knowingly, any Takeover Proposal (or inquiries or the making of any proposal requests that constitutes, relate thereto or may could reasonably be expected to lead tothereto) or engage in any discussions or negotiations with respect thereto (or that could reasonably be expected to lead to a Takeover Proposal) or otherwise cooperate with or assist or participate in or facilitate any such requests, proposals, offers, discussions or negotiations, (ii) take any Transaction action to make the provisions of any Takeover Statute inapplicable to any transactions contemplated by a Takeover Proposal, (iii) adopt, approve or recommend, or resolve to or publicly propose to adopt, approve or recommend, a Takeover Proposal, (iv) enter into any Company Acquisition Agreement or consummate any such transaction, or enter into any agreement or maintain understanding requiring the Company to abandon, terminate or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or fail to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in consummate this Agreement shall prohibit or the Transactions or breach its obligations hereunder, or (v) agree, approve, recommend or resolve to do any of the foregoing. (c) If at any time (including after the Go-Shop Period End Date) prior to obtaining Shareholder Approval, the Company or any of its Subsidiaries has received a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to other than a written Takeover Proposal that was intentionally or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly knowingly solicited in violation of this Agreement or that directly or indirectly resulted from a material breach of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee)5.2, after consultation with its outside financial and legal counseladvisors, determines in good faith that the failure to take such action would be inconsistent with its or in violation of the Company Board’s fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable shareholders under applicable securities laws) if the Company Board (acting through the Special Committee)Law and that such Takeover Proposal constitutes or would reasonably be expected to result in or lead to a Superior Proposal, after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Datethen, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties may (i) furnish information with respect to the foregoing Company to the Person making such Takeover Proposal and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) participate in discussions or negotiations (iiiincluding, as a part thereof, making any counterproposals) above and subject to compliance with this Section 6.4the Person making such Takeover Proposal regarding such Takeover Proposal; provided, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date, that the Company may continue to engage in shall comply with the activities described proviso in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:5.2(a)

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on From the date of this Agreement and continuing hereof until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Closing Date”), the Company shall not, and shall use its Subsidiaries and their respective officersbest efforts to ensure that its Affiliates, directors, employees, representativesofficers, agents and affiliates or other representatives (including, without limitationbut not limited to, any investment banker, financial advisor, attorney or accountant retained by Company or any of its Subsidiariesaccountant) (collectively, “Responsible Parties”) shall have the rightdo not, directly or indirectlyindirectly initiate any contact with, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to to, or in connection with, or furnish or disclose any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regardingregarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, and affording access any Acquisition Proposal. Notwithstanding the foregoing, to the businessextent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal counsel, properties(i) the 35 42 Company may, assetsin response to an unsolicited request therefor, booksfurnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, records if (A) the Company has complied fully and personnel ofin a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and its Subsidiaries negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to any Person pursuant the Purchaser (after compliance in full with each of the conditions precedent to one the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or more confidentiality agreements executed negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Person; provided Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly make available to Parent any material non-public information concerning advise the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate Purchaser in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none writing of the Company, nature of any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistancechange in the terms thereof), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1y) the Company Board (acting through shall have paid or shall have arranged for the Special Committee), after consultation with its outside legal counsel, determines in good faith that payment of the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser Termination Fee to the effect that it is furnishing such information to or entering into discussions or negotiations Purchaser in accordance with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event Section 9.03 and the Company Board shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (acting through z) the Special Committee), after consultation with Company shall have taken all action on its outside legal counsel, determines in good faith that part required to cause the failure Earnxxx Xxxey Escrow Agent to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making deliver the Earnxxx Xxxey Deposit to the Company’s stockholders any recommendation and related filing with Purchaser (the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines conditions set forth in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (iv), (iiw), (x), (y) or and (iiiz) above and subject being hereinafter collectively referred to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to as the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date"Overbid Termination Conditions"), the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations terminate this Agreement and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:enter into an agreement

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on From the date of this Agreement and continuing hereof until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Closing Date”), the Company Vista Parties and its the Subsidiaries shall not, and shall use their best efforts not to permit their respective officersAffiliates, directors, employees, representativesofficers, agents and affiliates or other representatives (including, without limitationbut not limited to, any investment banker, financial advisor, attorney or accountant retained by accountant) to, initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or furnish or disclose any non-public information regarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the Board of Directors of the Company based on the advice of counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its SubsidiariesSubsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby, other than any information which the Company can demonstrate was independently developed by it or its advisors) with such Qualified Third Party and (collectivelyii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, “Responsible Parties”if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration attributable to the Existing Securities having a value at least $1,000,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, which offer shall state that it may not be withdrawn or revoked by the Purchaser unless the Company and the Purchaser do not enter into an amendment to this Agreement to reflect the acceptance of the Topping Offer within ten calendar days after receipt thereof by the Company (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the holders of Existing Securities after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) either the Company shall have paid the rightTermination Fee to the Purchaser (if the Company shall not have theretofore delivered the Termination Fee to the Termination Fee Escrow Agent) or the Vista Parties shall have taken all action on their part required in order to cause the Termination Fee Escrow Agent to deliver the Termination Fee Deposit to the Company (if the Company shall have theretofore delivered the Termination Fee to the Termination Fee Escrow Agent) and (z) the Vista Parties shall have taken all action on their part required to cause the Earnxxx Xxxey Escrow Agent to deliver the Earnxxx Xxxey Deposit to the Purchaser (the conditions set forth in clauses (v), directly (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may enter into an agreement with a Qualified Third Party with respect to an Overbid Transaction. It is expressly understood and agreed that, if any Affiliates, directors, officers, agents or indirectlyother representatives (including, under the direction but not limited to, any investment banker, financial advisor, attorney or accountant) of the Special Committee (which has been authorized Company, whether or not such persons are purporting to act on behalf of the Company Board and Company, engage in any conduct involving the Company with respect to any action permitted or contemplated by this Section 6.4)furnishing of information to, to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel solicitation of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate participation in any discussions or negotiations with any Person or group with, a Third Party which, if performed by the Company, would constitute a breach of Persons with respect the provisions of this Section 6.02(a), then, notwithstanding anything to any Transaction Proposals (or any inquirythe contrary contained herein, proposal or offer or other efforts or attempts that may reasonably such Third Party shall not be expected to lead to deemed a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiationsQualified Third Party for purposes of this Agreement. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after In the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit event the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not shall directly or indirectly solicited receive any offer, proposal or inquiry regarding an Acquisition Proposal, the Company shall notify the Purchaser within one Business Day after the receipt of such offer, proposal or inquiry and shall, in violation any such notice to the Purchaser, indicate the identity of this Section 6.4 the offeror and all of the material terms of such offer, proposal or inquiry. (c) The Company shall not modify, or release any Third Party from any confidentiality or standstill agreement to which the Company Board is a party (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines exclusive of those in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) which the Company Board (acting through is solely the Special Committeerecipient rather than the provider of confidential information), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:.

Other Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. (Eastern Time) on the 30th calendar day after the date of this Agreement (the “No-Shop No­Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, representatives, agents and affiliates (including, without limitation, any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, “Responsible Parties”) shall have the right, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public non­public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; Person; provided that the Company shall promptly make available to Parent any material non-public non­public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-No­ Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public non­public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:agreement;

Other Proposals. (a) Notwithstanding anything to the contrary contained The Board of Directors of SAH may engage in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. negotiations or discussions with any person other than Sequoia or its Affiliates (Eastern Timeany such person a “Third Party”) on the 30th calendar day after the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, representatives, agents and affiliates (includingthat, without limitationprior solicitation by or negotiation with SAH, any investment banker, attorney or accountant retained by Company has made a Superior Proposal and furnish to such Third Party nonpublic information relating to SAH or any of its SubsidiariesSubsidiaries pursuant to a confidentiality agreement; provided that Sequoia shall be promptly furnished with such nonpublic information following the furnishing thereof to such Third Party (to the extent such nonpublic information has not been previously furnished by SAH to Sequoia). Following receipt of such Superior Proposal, SAH’s Board of Directors may fail to make, withdraw or modify in a manner adverse to Sequoia its recommendation to its stockholders referred to in Section 5.8 below, submit such Superior Proposal to a vote of its stockholders, and/or take any action advisable or required under law, if SAH’s Board of Directors determines in good faith that the board must take such action to comply with its fiduciary duties under applicable law. Nothing contained herein shall prevent SAH’s Board of Directors from complying with Rule 14e-2(a) (collectively, “Responsible Parties”) shall have the right, directly or indirectly, Rule 14d-9 under the direction Exchange Act with regard to an Acquisition Proposal or from making other disclosures to SAH’s stockholders if required under applicable law; provided, however, that any such actions shall comply with the other requirements of the Special Committee this Section 5.7. (which has been authorized b) SAH shall continue to act keep Sequoia informed, on behalf of the Company Board and the Company a current basis, with respect to such Superior Proposal after taking such action. In addition, SAH shall notify Sequoia promptly after receipt by SAH of any action permitted Acquisition Proposal, any written indication that a third party is considering making an Acquisition Proposal or contemplated by this Section 6.4), of any request for information relating to (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (SAH or any inquiry of its Subsidiaries or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regarding, and affording for access to the business, properties, assets, books, books or records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company SAH or any of its Subsidiaries by any third party that was furnished by may be considering making, or on behalf has made, an Acquisition Proposal. SAH shall provide such notice orally and within one (1) Business Day in writing and shall identify the third party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. SAH shall provide within one (1) Business Day of receipt a copy of any documentation of the Company and/or its Subsidiaries to return terms of any such inquiry, proposal or destroy (offer, and confirm destruction of) all such information. In the event of an exercise thereafter shall keep Sequoia informed, on a current basis, of the Company’s status and terms of any such proposals or offers and the Company Board’s rights under clauses status of any such discussions or negotiations (including by delivering any further documentation of the type referred to above). (c) If this Agreement shall not have previously terminated, SAH shall pay Sequoia a fee of one million dollars ($1,000,000) (the “SAH Termination Fee”) no later than 10 days after the date of the first to occur: (i)) of the execution by SAH of any agreement with a Third Party (other than a confidentiality agreement) providing for the sale of substantially all of the assets of SAH or providing for the merger of SAH with a Third Party, (ii) the approval or (iii) above recommendation to the stockholders of SAH of a Superior Proposal, or the consummation of a Superior Proposal. Sequoia agrees that payment of the SAH Termination Fee, if such fee is actually paid as provided herein, will be the sole and subject to compliance with exclusive remedy of Sequoia upon termination of this Section 6.4, notwithstanding anything Agreement. SAH acknowledges that the agreements contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement Section 5.7 are an integral part of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect totransactions contemplated by this Agreement, and the restrictions in Section 6.4(b) shall that, without these agreements, Sequoia would not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of enter into this Agreement:.

Other Proposals. (a) Notwithstanding anything to HBI shall not solicit or encourage inquiries or proposals with respect to, furnish any information relating to, or participate in any negotiations or discussions concerning any acquisition or purchase of all or a substantial equity interest or portion of the contrary contained assets in or of HBI or any business combination with HBI other than as contemplated by this Agreement, during or authorize or permit any officer, director, agent or affiliate of it to do any of the period beginning on above, provided, however, that it may respond to an unsolicited, bona fide, written offer, if the date directors of this Agreement and continuing until 12:01 a.m. HBI shall have determined in good faith, based of the written opinion of outside counsel (Eastern Timesubject to appropriate qualifications) on that failure to respond would be reasonably likely to constitute a breach of the 30th calendar day after the date HBI board of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, representatives, agents and affiliates (including, without limitation' fiduciary duty under Pennsylvania law; or fail to notify Sterling immediately if any such inquiries or proposals are received by, any investment bankersuch information is requested from, attorney or accountant retained by Company or any of its Subsidiariessuch negotiations are sought to be initiated with HBI; (b) (collectivelyHBI shall not authorize or permit any officer, “Responsible Parties”) shall have the rightdirector, employee, agent, consultant, counsel, financial advisor or other representative to, directly or indirectly, under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4)solicit, to (i) initiate, solicit and encourage, whether publicly initiate or otherwise, Transaction Proposals (or any inquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person with, or group of Persons with respect respond to any Transaction Proposals (or any inquiryrequests for information, proposal or offer inquiries or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate communications from any such inquiriespersons other than Sterling concerning the fact of, proposals, offers, efforts, attempts, discussions or negotiations. (b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of terms and conditions of, this Agreement, none or concerning any acquisition of the Company, any of its SubsidiariesHBI, or any assets or business thereof (except that HBI officers may respond to inquiries from analysts, regulatory authorities and holders of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way HBI Common Stock in the Ordinary Course of furnishing non-public information or assistanceBusiness), or take ; and HBI shall notify Sterling immediately if any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue such discussions or negotiate negotiations are sought to be initiated with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take HBI by any such action; providedperson other than Sterling or if any such requests for information, inquiries, proposals or communications are received from any person other than Sterling. Provided, however, that nothing contained HBI may respond to an unsolicited bona fide written offer if the directors of HBI shall have determined in this Agreement shall prohibit good faith, based on the Company Board written opinion of outside counsel (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (iappropriate qualifications) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (1) the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action respond would be inconsistent with its fiduciary duties reasonably likely to stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party or as otherwise permitted by the foregoing provisions of this Section 6.4, after the No-Shop Period Start Date, the Company shall, and shall cause its Subsidiaries and shall use reasonable best efforts to cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) all such information. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance HBI board of doubt, notwithstanding the commencement of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:directors' fiduciary duty under applicable law.