Common use of Superior Proposal Clause in Contracts

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a), in the event that prior to the time that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.04(a), in the event that prior to the time that receipt of the Requisite Company Stockholder Approval has been obtainedVote, the Company receives Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide written Alternative Transaction fide, unsolicited Takeover Proposal which is determined to bein writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith (after consultation with its outside legal counsel and its the Company financial advisor) Advisor constitutes or is reasonably likely to becomeresult in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company or the Company Board may then to take the following actions(which order remains unstayed), but only if in each case referred to in the foregoing clauses (i) through (A) v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that it is required failure to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable disclose such position would constitute a violation of applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.3(a), in the event that that, prior to the time that Company Stockholder Approval has been obtained, the Company receives a an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined to be, or which the Company Company’s Board determines of Directors has in good faith concluded (after following the receipt of advice from and consultation with its outside legal counsel and its a financial advisoradviser of national standing) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if if: (i) (A) the Company Company’s Board of Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel, that it is required the failure to do so to comply would be inconsistent with its fiduciary obligations to the Company Stockholders its stockholders under Applicable Delaware Law, and (B) the Company has given Acquiror at least two business days Parent prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, actions; and (ii) the Alternative Transaction Proposal did not result or arise from any breach Company shall have previously complied with the provisions of this Section 5.2.6.3: (i) Furnish nonpublic furnish non-public information to the Person or Group third party making such Alternative Transaction Proposal, provided that (A) the Company first shall have first received from such Person third party an executed confidentiality agreement containing (1) customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s behalf, the terms of which are at least as restrictive with regard to Company’s confidential information as the terms contained in the Confidentiality Agreement, and (2) a standstill provision, the term of which is at least as long as the term contained in the Confidentiality Agreement, and the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement Agreement, and (B) contemporaneously with furnishing any such nonpublic non-public information to such Person or Groupthird party, it the Company furnishes such nonpublic non-public information to Acquiror Parent (to the extent such nonpublic non-public information has not been previously so furnished to Acquirorfurnished); and (ii) Engage engage in discussions or negotiations with such Person or Group the third party with respect to such the Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)this Agreement, in the event that if, at any time prior to obtaining the time that Company Stockholder Approval has been obtainedApproval, the Company receives a bona fide written Alternative Transaction Takeover Proposal which is determined to be, or which the Company Board determines Special Committee concludes in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, constitutes a Superior ProposalProposal after giving effect to all of the adjustments which are offered by Parent pursuant to clause (ii) below, the Company or the Company Board may then take (x) effect a Change in Recommendation and/or (y) terminate this Agreement (in accordance with Section 9.01(e)) in order to enter into a definitive agreement with respect to such Superior Proposal, if the following actions, but only if (i) (A) the Company Board Special Committee determines in good faith, after consultation with its outside legal counsel, that it is required failure to do so to comply take such action would be inconsistent with its fiduciary obligations duties to the Company Stockholders under Applicable applicable Law; provided, however that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (By) shall be void and of no force or effect, unless concurrently with such termination the Company pays the Company Termination Fee payable pursuant to Section 7.05(b); provided, further, that the Company Board may not effect a Change in Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless: (i) the Company has given Acquiror at least two business days shall have provided prior written notice to Parent, at least three (3) calendar days in advance (the “Notice Period”) of its intention to take effect a Change in Recommendation in response to such Superior Proposal or terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any of the following actions and of such Superior Proposal (including the identity of the Person or Group group of Persons making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Superior Proposal), and (ii) shall have contemporaneously provided a copy of the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to relevant proposed transaction agreements with the Person or Group group of Persons making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement Superior Proposal and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror)other material documents; and (ii) Engage prior to effecting such Change in discussions Recommendation or negotiations with such Person or Group terminating this Agreement to enter into a definitive agreement with respect to such Alternative Transaction Superior Proposal, the Company shall, and shall cause its financial and legal advisors to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal. In the event of any revision to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of Section 6.02(e) with respect to such new written notice.

Superior Proposal. Notwithstanding anything to Following the contrary contained in Section 5.2(a), in receipt by the event that prior to the time that Company Stockholder Approval has been obtained, the Company receives Receiving Party of a bona fide written Alternative Transaction Acquisition Proposal which is determined made after the date of this Agreement (that was not solicited, assisted, initiated, knowingly encouraged or facilitated after the date hereof in contravention of Section 4.1(e) or Section 4.2(e), as the case may be), the Receiving Party and its Representatives may: (i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the likelihood of its consummation so as to bedetermine whether such Acquisition Proposal is, or which the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to becomelead to, a Superior Proposal, ; and (ii) if the Company or board of directors of the Company Board may then take Receiving Party (the following actions, but only if (i“Receiving Party Board”) (A) the Company Board determines in good faithdetermines, after consultation with its outside legal counseland financial advisors, that it such Acquisition Proposal is, or is required reasonably likely to do so to comply lead to, a Superior Proposal: A. furnish information with its fiduciary obligations respect to the Company Stockholders under Applicable Law, Receiving Party and (B) its Subsidiaries to the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group person making such Alternative Transaction Acquisition Proposal and the material terms and conditions of its Representatives only if such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did person has entered into a confidentiality agreement that contains provisions that are not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information less favourable to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as Receiving Party than those contained in the Confidentiality Agreement, and which also includes a standstill covenant that prohibits such person, for a period of 6 months, from acquiring, or offering to acquire, any equity securities of the Receiving Party, provided that the Receiving Party sends a copy of such confidentiality agreement shall not include any provision having to the actual or purported effect of restricting Notified Party promptly following its execution and the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement Notified Party is promptly provided with a list of, and (B) contemporaneously with furnishing any such nonpublic information access to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent not previously provided to the Notified Party) the information provided to such nonpublic information has not been previously so furnished to Acquiror)person; and (ii) Engage B. engage in discussions or and negotiations with the person making such Person or Group with respect to Acquisition Proposal and its Representatives provided that all such Alternative Transaction Proposalinformation access and discussions shall cease during the Match Period (as defined below).

Superior Proposal. Notwithstanding anything to If, after the contrary contained in Section 5.2(a)date of this Agreement, in the event that but prior to the time that Company Stockholder Approval has been obtainedreceipt of USPB Member Approval: (i) any Seller, the Company New Kleinco or National receives a bona fide written Alternative Transaction Acquisition Proposal, which was unsolicited and not involving a breach of Section 5.11(a), and, in accordance with the provisions of Section 5.11, Sellers, New Kleinco or National, as applicable, shall promptly disclose to Buyer the material terms and conditions of the Acquisition Proposal which is determined to beand the identity of the Person making such Acquisition Proposal; and (ii) the Board of Directors of USPB, or which having received the Company Board advice of outside legal counsel and an outside financial advisor, reasonably determines in good faith (after consultation with its outside legal counsel and its financial advisor) that such Acquisition Proposal is or is reasonably likely to become, lead to a Superior Proposal (after taking into account any written offer by Buyer to improve the terms of this Agreement in response to such Acquisition Proposal), the Company or the Company Board may then take the following actionsSellers, but only if New Kleinco, National and their Representatives (i) (A) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior providing Buyer not less than 24 hours written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, action in clauses (1) and (ii2) the Alternative Transaction Proposal did not result or arise from any breach below and prior to receipt of this Section 5.2.USPB Member Approval) may: (i1) Furnish nonpublic furnish information (including non-public information) with respect to National and Sellers to the Person or Group making such Alternative Transaction Proposal, the Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement (provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include restrict Buyer’s rights to information under any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or and shall contain provisions that are no less restrictive with respect to the conduct of the Person to whom information is disclosed than those contained in the Confidentiality Agreement and the Indication of Interest (other than provisions relating to exclusivity), (B) contemporaneously USPB and National shall provide Buyer with furnishing any a correct and complete copy of each such nonpublic confidentiality agreement or other agreement providing access to information of National and Sellers within 24 hours of the execution thereof by both parties, and (C) all non-public information that is provided to such Person or Group(and/or its representatives) shall concurrently also be provided, it furnishes such nonpublic information to Acquiror (if not previously provided, to the extent such nonpublic information has not been previously so furnished to AcquirorBuyer); and; (ii2) Engage participate in discussions or negotiations with the Person making the Acquisition Proposal (and its representatives) regarding the Acquisition Proposal; and (3) during the period when the Board of Directors is determining pursuant to clause (b)(ii) of this Section 5.11 if an Acquisition Proposal is or is reasonably likely to lead to a Superior Proposal and during any period while Sellers, New Kleinco, National and their Representatives are participating in discussions or negotiations regarding an Acquisition Proposal pursuant to clause (b)(2) of this Section 5.11, postpone any meeting of the USPB Members for a period of time equal to the sum of the periods of time required to complete the activities contemplated by clauses (b)(ii) and (b)(2) of this Section 5.11 (the “Determination Period”); provided, that any such Person Determination Period shall not exceed ten (10) days, subject to any additional extension of up to twenty (20) days, with the total Determination Period not to exceed a total of thirty (30) days, and such extension only upon advice of outside legal counsel to USPB that such extension is necessary for the USPB Board to fulfill its fiduciary duties under Delaware law. USPB’s obligations to seek USPB Member Approval shall be tolled for the Determination Period. If, at the end of the Determination Period, this Agreement has not been terminated pursuant to Section 7.1(g), the time period for seeking USPB Member Approval specified in Section 5.12 shall resume and continue for the remainder of such period, without any portion of the Determination Period being considered a portion of the time periods specified in Section 5.12. The Parties further acknowledge and agree that any activities of any Seller, New Kleinco, National, any of their Subsidiaries, investment bankers, consultants, other advisors, officers, directors, employees, agents or Group with respect other representatives pursuant to such Alternative Transaction Proposalthis Section 5.11(b) or pursuant to Section 5.11(d) below shall not constitute, or be deemed to constitute a breach of this Section 5.11, or of any other provision of this Agreement.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.04(a), in the event that prior to the time that Company Stockholder Approval has been obtainedOffer Closing, the Company receives Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and Section 6.04(d): (i) participate in negotiations or discussions with any third party that, after the date hereof, has made (and not withdrawn) a bona fide written Alternative Transaction fide, unsolicited Takeover Proposal which is determined to be, or in writing that did not result from a material breach of this Section 6.04 and which the Company Board determines believes in good faith (faith, after consultation with its financial advisor and outside legal counsel and its financial advisor) is counsel, constitutes or would reasonably likely be expected to become, result in a Superior Proposal, ; (ii) thereafter furnish to such third party information relating to the Company or any of its Subsidiaries pursuant to Acceptable Confidentiality Agreement (provided that the Company Board may then take shall substantially concurrently provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person to the extent access to such information was not previously provided to Parent); and/or (iii) following actionsreceipt of and on account of a Superior Proposal that did not result from a material breach of this Section 6.04, make a Company Adverse Recommendation Change but in each case referred to in the foregoing clauses (i) through (iii), only if (iA) the provisions of Section 6.04(c) and Section 6.04(d) are complied with and (AB) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that it is required the failure to do so take such action would reasonably be expected to comply cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary obligations duties to the Company Stockholders Company’s stockholders under Applicable applicable Law, and (B) . Nothing contained herein shall prevent the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise Board from any breach of this Section 5.2. (i) Furnish nonpublic information disclosing to the Person or Group making such Alternative Transaction Proposal, provided that (ACompany's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with its financial advisors and outside legal counsel, that failure to disclose such position would reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s confidential information as the Confidentiality Agreementstockholders under applicable Law; provided, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting that neither the Company from fulfilling its obligations under this Agreement Board or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquirorcommittee thereof shall make a Company Adverse Recommendation Change except as expressly permitted by Section 6.04(d); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.2(a), in the event that the Company receives after the date of this Agreement, prior to the time that Company Stockholder Approval has been obtainedAcceptance Time or the earlier termination of this Agreement in accordance with its terms, the Company receives a an unsolicited, bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, actions (but only if (ix) (A) the Company Board determines concludes in good faith, after consultation with its outside legal counsel, that it is required to do so in order to comply with its fiduciary obligations to the Company Stockholders duties under Applicable applicable Law, and (B) the Company Board determines in good faith that, after consultation with its outside legal counsel and financial advisors that such Alternative Transaction Proposal is, or could reasonably be expected to lead to, a Superior Proposal, and (C) the Company has given Acquiror at least two business days Parent prior written notice of its intention to take any of the following actions and of the identity of the Person or Group group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal(y) it shall not have breached any, and (ii) continues to comply with all, of the Alternative Transaction Proposal did not result or arise from any breach provisions of this Section 5.2.6.2): (i) Furnish furnish nonpublic information with respect to the Company and the Company Subsidiaries to the Person or Group group making such Alternative Transaction Proposal; provided, provided that (A) the Company first shall have received prior to furnishing any such nonpublic information, it receives from such Person or group an executed confidentiality agreement (a copy of which shall be provided, promptly after its execution, to Parent) containing confidentiality terms at least as restrictive with regard to Company’s confidential information as the terms contained in the Confidentiality Agreement, and which confidentiality agreement shall not include contain any exclusivity provision having or other term that would restrict, in any manner, the actual Company’s ability to consummate the Transactions or purported effect of restricting the Company from fulfilling to comply with its disclosure obligations under to Parent pursuant to this Agreement or the Confidentiality Agreement Agreement, and (B) contemporaneously substantially concurrently with furnishing any such nonpublic information to such Person or Groupgroup, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror)Parent; and (ii) Engage engage in discussions or negotiations with such Person or Group group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding If the Company receives an unsolicited Acquisition Proposal that did not result from a material breach of this Section 5.3 and that the Company Board has determined in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel) constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal or (B) cause the Company to terminate this Agreement pursuant to Section ‎8.1(j) in order to substantially simultaneously enter into a definitive agreement with respect to such Superior Proposal; provided, that, notwithstanding anything to the contrary contained in Section 5.2(a)herein, in neither the event that prior to the time that Company Stockholder Approval nor any of its Subsidiaries shall enter into any Alternative Acquisition Agreement unless this Agreement has been obtainedvalidly terminated in accordance with Section ‎8.1(j); provided, further, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which Board shall not take any action described in the foregoing clauses (A) and (B) unless: (1) the Company Board determines in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law (which determination together with the Determination Notice described below, to the extent expressly permitted by this Section ‎5.3(d)(ii), in and its financial advisor) is reasonably likely of itself shall not, unless a Company Board Recommendation Change has otherwise occurred, constitute a Company Board Recommendation Change or otherwise, unless a material breach of this Section 5.3 has occurred and subject to becomethe terms of Section 8.1(e), constitute a Superior Proposal, basis for Parent to terminate this Agreement pursuant to Section 8.1(e); provided that any public statement or disclosure made in connection with the Company or foregoing includes an express reaffirmation of the Company Board may then take the following actionsRecommendation, but only if (iwithout any amendment, withdrawal, alteration, modification or qualification thereof) (A) it being further understood and agreed that the foregoing shall not limit any rights or remedies of Parent under this Agreement upon the occurrence of a Company Board determines in good faithRecommendation Change or, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations subject to the terms of Section 8.1(e), material breach of this Section 5.3, including any Company Stockholders under Applicable Law, and Board Recommendation Change that occurs following the conclusion of the Notice Period); and (B2) the Company has given Acquiror at least two business days provided prior written notice (the “Determination Notice”) to Parent at least four (4) Business Days in advance (it being understood that any material revision, amendment, update or supplement to the terms or conditions of its intention such Superior Proposal shall be deemed to constitute a new Superior Proposal and shall require a new notice but with an additional minimum of three (3) Business Days (instead of at least four (4) Business Days) notice and negotiation period from the date of such notice) (any such notice period, as extended, the “Notice Period”) to the effect that the Company Board intends to take any the actions described in clauses (A) or (B) of the following actions and of this Section ‎5.3(d)(ii), including the identity of the Person or Group making such Alternative Transaction Proposal and Acquisition Proposal, the material terms thereof and copies of all material relevant agreements relating to such Acquisition Proposal, and during such Notice Period, the Company shall and shall cause its Representatives to negotiate in good faith (to the extent Parent desires to negotiate) any proposal by Parent to amend the terms and conditions of this Agreement such Alternative Transaction that such Acquisition Proposal would cease to constitute a Superior Proposal, ; and (ii) at the Alternative Transaction Proposal did not result or arise from any breach end of this Section 5.2. such Notice Period (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (Aas extended) the Company first shall have received from Board again determines in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel) that such Person an executed confidentiality agreement containing terms at least as restrictive with regard Acquisition Proposal continues to Company’s confidential information as constitute a Superior Proposal and again makes the Confidentiality Agreement, which confidentiality agreement shall not include any provision having determination under Section ‎5.3(d)(ii)(1) (in each case after in good faith taking into account the actual or purported effect of restricting proposals for amendments in a form that is binding to Parent subject only to execution by the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquirorproposed by Parent); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)prohibition on solicitation, in at any time following the event that date of the merger agreement and prior to the time that date on which the Company Stockholder Approval has been Requisite Vote (as defined below) is obtained, Asensus and its representatives may furnish non-public information concerning Asensus’ business, properties or assets to any person in accordance with a confidentiality agreement with terms no less favorable in the aggregate to Asensus than those contained in the confidentiality agreement and may participate in discussions and negotiations with such person concerning a Company receives Acquisition Proposal if, but only if, such person has submitted a bona fide written Alternative Transaction proposal to Asensus relating to such Company Acquisition Proposal which is determined to be, or which that the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Asensus Board determines in good faith, after consultation with its Xxxxxxx’ outside legal counselcounsel and financial advisor, is or is reasonably likely to lead to a Superior Proposal. From and after the date of the merger agreement and prior to the Stockholders Meeting, Asensus will promptly (and in any event within forty-eight (48) hours) notify Parent if Asensus or any Company subsidiary or representative receives (i) any Company Acquisition Proposal or indication by any person that it is required considering making a Company Acquisition Proposal, (ii) any request for non-public information relating to do so Asensus or any Company subsidiary other than requests for information in the ordinary course of business and unrelated to comply a Company Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with its fiduciary obligations respect to the any Company Stockholders under Applicable Law, Acquisition Proposal. Asensus will provide Parent promptly (and in any event within such forty-eight (B48) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of hour period) with the identity of the Person such person and a correct and complete copy of such Company Acquisition Proposal, indication, inquiry or Group making request (or, where such Alternative Transaction Company Acquisition Proposal and is not in writing, a description of the material terms and conditions of such Alternative Transaction Company Acquisition Proposal, indication, inquiry or request), including any modifications thereto. Xxxxxxx will keep Parent reasonably informed (orally and in writing) on a current basis (iiand in any event no later than forty-eight (48) hours after the Alternative Transaction occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence, and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, Xxxxxxx will promptly (and in any event within forty-eight (48) hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal did and will in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Asensus will not, and will cause each Company subsidiary not result or arise to, enter into any agreement with any person subsequent to the date of the merger agreement that would restrict the Company’s ability to provide such information to Parent and neither Asensus nor any Company subsidiary is currently party to any agreement that prohibits Asensus from any breach of providing to Parent the information described in this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that 5.2(b). Asensus (A) the will not, and will cause each Company first shall have received from such Person an executed subsidiary not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreementwhich it or any Company subsidiary is or becomes a party, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing will, and will cause each Company subsidiary to, use reasonable best efforts to enforce any such nonpublic information agreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to such Person or Groupdo so would be inconsistent with the fiduciary duties of the Asensus Board to the Company’s stockholders under applicable Law, it furnishes such nonpublic information to Acquiror in which event Asensus may take the actions described in these clauses (A) and (B) solely to the extent necessary to permit a third party to make, on a confidential basis to the Asensus Board, a Company Acquisition Proposal, conditioned upon such nonpublic third party agreeing that Asensus shall not be prohibited from providing any information to Parent (including regarding any such Company Acquisition Proposal) in accordance with, and otherwise complying with, this provision, Asensus will promptly provide to Parent any non-public information concerning Asensus or any Company subsidiary provided or made available in accordance with this provision which was not previously provided or made available to Parent. For purposes of the merger agreement, a “Superior Proposal” is a written Company Acquisition Proposal that did not result from or involve a material breach of this provision and that proposes an acquisition of more than fifty percent (50%) of the equity securities or consolidated total assets of Asensus and the Company Subsidiaries on terms which the Asensus Board determines in its good faith judgment to be more favorable to the holders of the Shares than the transactions contemplated hereby (after consultation with the Company’s outside counsel and financial advisor), taking into account all the terms and conditions of such proposal and the merger agreement, which the Asensus Board has not been previously so furnished determined to Acquiror); and (ii) Engage in discussions be as or negotiations with more reasonably likely to be completed on the terms proposed than the transactions contemplated by the merger agreement, taking into account all financial, regulatory, legal and other aspects of such Person or Group with respect to such Alternative Transaction Proposalproposal and the terms of the merger agreement.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a), in the event that prior to the time that Company Stockholder Approval has been obtained, the Company receives a “Superior Proposal” shall mean any bona fide written Alternative Transaction Acquisition Proposal which is determined by a third party not affiliated with the Company or any Person who was a director or executive officer of the Company as of May 17, 2008 to bepurchase all the outstanding capital stock of the Company, pursuant to a tender or exchange offer, a merger, a consolidation, a recapitalization or other business transaction, or which to purchase business or businesses or assets that constitute or account for all or substantially all of the consolidated net revenues of the Company Board determines and its Subsidiaries, taken as a whole, and that (in each case): (A) was not obtained or made as a direct or indirect result of a breach of Section 4.2 of the Agreement, or the Confidentiality Agreement, (B) is not subject to a financing (or reverse break-up fee payable in the event of failure to obtain financing) contingency that is unlikely or uncertain to be satisfied, as determined in good faith by the Company’s Board of Directors, and (C) is determined in good faith by the Company’s Board of Directors, after consultation with its the Company’s financial advisor and outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, taking into account all the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material known terms and conditions of such Alternative Transaction Acquisition Proposal, to contemplate a transaction that: (x) if consummated would be more favorable to the Company’s stockholders than the transactions contemplated by the Agreement (taking into account the terms of such Alternative Acquisition Proposal and any amendments to the terms of the Agreement proposed by Parent in a binding written offer provided by Parent to the Company in response to such Alternative Acquisition Proposal; and (iiy) is reasonably capable of being consummated by the Alternative Transaction Proposal did not result or arise from any breach third party on the terms of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Acquisition Proposal (taking into account the relevant financial, legal and regulatory considerations associated with such Alternative Acquisition Proposal, provided ) (it being understood that (A) an executive officer of the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard who elects to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations continue employment with such Person or Group its Affiliates after the consummation of any Alternative Acquisition Transaction shall not be deemed to be affiliated with respect to such Alternative Transaction Proposalthe Company for purposes of this definition).

Superior Proposal. Notwithstanding anything to the contrary contained set forth in Section 5.2(a)) or in any other provision of this Agreement, in the event that the Company receives, after the execution and delivery of this Agreement and prior to the time that Company Stockholder Approval has been obtained, obtaining the Company receives Shareholder Approval, a bona fide written Alternative Transaction Proposal which is determined to bedid not result from a breach of this Section 5.2 (other than, individually or in the aggregate, insignificant breaches) and which the Board of Directors of the Company Board determines in good faith (after consultation with its outside legal counsel and its an independent financial advisoradvisor of nationally recognized reputation) is to be, or to be reasonably likely expected to becomelead to, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2.: (i) Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Person or Group group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group group of Persons (and their respective advisors and other representatives) with respect to such Alternative Transaction Proposal; provided, that prior to taking any action referred to in clause (i) or (ii) above, the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such Person or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-Disclosure Agreement, dated as of July 27, 2017, between the Company and Parent, as amended by the Exclusivity Agreement, dated as of October 30, 2017, between the Company and Parent and the First Amendment to the Confidentiality and Non-Disclosure Agreement, dated November 29, 2017 (the “Confidentiality Agreement”), and (y) gives notice to Parent in accordance with Section 5.2(c). Any breach by any director, officer, employee or Representative of the Company or any of its Subsidiaries of this Section 5.2(b) shall be deemed a breach hereof by the Company if the Company does not (i) give prompt notice of any such breach to Parent after the Company obtains Knowledge of such breach and (ii) take such action reasonably requested by Parent to seek to cure such breach within three (3) Business Days of the date on which the Company receives such request from Parent; provided, that, if Parent reasonably determines in good faith that such breach is not curable, then such breach shall be deemed a breach by the Company, regardless of whether the Company has taken any action to seek to cure such breach.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)prohibition on solicitation, in at any time following the event that date of the merger agreement and prior to the time that Company Stockholder Approval has been obtained, date on which the stockholders of the Company receives adopt the merger agreement, Asensus and its representatives may furnish non-public information concerning Asensus’ business, properties or assets to any person in accordance with a confidentiality agreement with terms no less favorable in the aggregate to Asensus than those contained in the confidentiality agreement entered into between the Company and XXXX XXXXX on February 10, 2022, and may participate in discussions and negotiations with such person concerning a Company Acquisition Proposal if, but only if, such person has submitted a bona fide written Alternative Transaction proposal to Asensus relating to such Company Acquisition Proposal which is determined to be, or which that the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Asensus Board determines in good faith, after consultation with its Xxxxxxx’ outside legal counselcounsel and financial advisor, is or is reasonably likely to lead to a Superior Proposal. From and after the date of the merger agreement and prior to the special meeting, Asensus will promptly (and in any event within forty-eight (48) hours) notify Parent if Asensus or any Company subsidiary or representative receives (i) any Company Acquisition Proposal or indication by any person that it is required considering making a Company Acquisition Proposal, (ii) any request for non-public information relating to do so Asensus or any Company subsidiary other than requests for information in the ordinary course of business and unrelated to comply a Company Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with its fiduciary obligations respect to the any Company Stockholders under Applicable Law, Acquisition Proposal. Asensus will provide Parent promptly (and in any event within such forty-eight (B48) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of hour period) with the identity of the Person such person and a correct and complete copy of such Company Acquisition Proposal, indication, inquiry or Group making request (or, where such Alternative Transaction Company Acquisition Proposal and is not in writing, a description of the material terms and conditions of such Alternative Transaction Company Acquisition Proposal, indication, inquiry or request), including any modifications thereto. Xxxxxxx will keep Parent reasonably informed (orally and in writing) on a current basis (iiand in any event no later than forty-eight (48) hours after the Alternative Transaction occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence, and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, Xxxxxxx will promptly (and in any event within forty-eight (48) hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal did and will in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Asensus will not, and will cause each Company subsidiary not result or arise from to, enter into any breach agreement with any person subsequent to the date of this Section 5.2. (i) Furnish nonpublic the merger agreement that would restrict the Company’s ability to provide such information to Parent and neither Asensus nor any Company subsidiary is currently party to any agreement that prohibits Asensus from providing to Parent the Person or Group making such Alternative Transaction Proposal, provided that information described above. Asensus (A) the will not, and will cause each Company first shall have received from such Person an executed subsidiary not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreementwhich it or any Company subsidiary is or becomes a party, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing will, and will cause each Company subsidiary to, use reasonable best efforts to enforce any such nonpublic information agreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to such Person or Groupdo so would be inconsistent with the fiduciary duties of the Asensus Board to the Company’s stockholders under applicable law, it furnishes such nonpublic information to Acquiror in which event Asensus may take the actions described in these clauses (A) and (B) solely to the extent necessary to permit a third party to make, on a confidential basis to the Asensus Board, a Company Acquisition Proposal, conditioned upon such nonpublic third party agreeing that Asensus shall not be prohibited from providing any information to Parent (including regarding any such Company Acquisition Proposal) in accordance with, and otherwise complying with, this provision, Asensus will promptly provide to Parent any non-public information concerning Asensus or any Company subsidiary provided or made available which was not previously provided or made available to Parent. For purposes of the merger agreement, a “Superior Proposal” is a written Company Acquisition Proposal that did not result from or involve a material breach of this provision and that proposes an acquisition of more than fifty percent (50%) of the equity securities or consolidated total assets of Asensus and the Company subsidiaries on terms which the Asensus Board determines in its good faith judgment to be more favorable to the holders of the shares of common stock than the transactions contemplated hereby (after consultation with the Company’s outside counsel and financial advisor), taking into account all the terms and conditions of such proposal and the merger agreement, which the Asensus Board has not been previously so furnished determined to Acquiror); and (ii) Engage in discussions be as or negotiations with more reasonably likely to be completed on the terms proposed than the transactions contemplated by the merger agreement, taking into account all financial, regulatory, legal and other aspects of such Person or Group with respect to such Alternative Transaction Proposalproposal and the terms of the merger agreement.

Superior Proposal. Notwithstanding anything to the contrary contained set forth in Section 5.2(a)) or in any other provision of this Agreement, in the event that the Company receives, after the execution and delivery of this Agreement and prior to the time that Company Stockholder Approval has been obtained, obtaining the Company receives Shareholder Approval, a bona fide written Alternative Transaction Proposal which is determined to bedid not result from a breach of this Section 5.2 (other than, individually or in the aggregate, insignificant breaches) and which the Board of Directors of the Company Board determines in good faith (after consultation with its outside legal counsel and its an independent financial advisoradvisor of nationally recognized reputation) is to be, or to be reasonably likely expected to becomelead to, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2.: (i) Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Person or Group group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group group of Persons (and their respective advisors and other representatives) with respect to such Alternative Transaction Proposal.; provided, that prior to taking any action referred to in clause (i) or (ii) above, the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such Person or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-Disclosure Agreement, dated as of July 27, 2017, between the Company and Parent, as amended by the Exclusivity Agreement, dated as of October 30, 2017, between the Company and Parent and the First Amendment to the Confidentiality and Non-Disclosure Agreement, dated November 29, 2017 (the “Confidentiality Agreement”), and (y) gives notice to Parent in accordance with Section 5.2(c). Any breach by any director, officer, employee or Representative of the Company or any of its Subsidiaries of this Section 5.2(b) shall be deemed a breach hereof by the Company if the Company does not (i) give prompt notice of any such breach to Parent after the Company obtains Knowledge of such breach and (ii) take such action reasonably requested by Parent to seek to cure such breach within three (3) Business Days of the date on which the Company receives such request from Parent; provided, that, if Parent reasonably determines in good faith that such breach is not curable, then such breach shall be deemed a breach by the Company, regardless of whether the Company has taken any action to seek to cure such breach. Table of Contents

Superior Proposal. (a) Except as otherwise provided in this Section 10 or with the prior consent of the Initial Consenting Noteholders, the Company shall not, directly or indirectly, commence, consummate an agreement to commence, make, seek, solicit, assist, initiate, encourage, facilitate, propose, file, support, or initiate any discussions or negotiations regarding any alternative offer, restructuring, sale of assets, merger, workout, plan or arrangement or plan of reorganization other than the Transaction. (b) Notwithstanding anything to the contrary contained in Section 5.2(a)10(a) or any other provision of this Agreement, in the event that prior to the time that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to beunsolicited proposal, or which the Company is permitted to negotiate and enter into a transaction in respect of any such proposal if, following receipt of advice from outside legal and financial advisors, the Board determines believes in good faith (after consultation with faith, in the exercise of its outside legal counsel fiduciary duties, that such proposal could reasonably be expected to result in a transaction more favourable to the Company and its financial advisor) is reasonably likely to become, stakeholders than the Transaction (a “Superior Proposal”); provided that if the Company receives a Superior Proposal, it shall disclose to the Company or Initial Consenting Noteholder Advisors within three (3) Business Days of the Company Board may then take the following actions, but only if receipt of such Superior Proposal: (i) the receipt thereof, (Aii) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal group of Persons involved, and (iii) the material terms and conditions of such Alternative Transaction Superior Proposal and copies of all material documents received in respect of such Superior Proposal from or on behalf of such Person, in each case subject to any confidentiality restrictions in respect of such Superior Proposal and provided that the Initial Consenting Noteholder Advisors and the Initial Consenting Noteholders shall agree to keep such information confidential. The Company shall keep the Initial Consenting Noteholder Advisors promptly informed of the status of developments, discussions and negotiations with respect to such Superior Proposal, in each case subject to any confidentiality restrictions in respect of such Superior Proposal and provided that the Initial Consenting Noteholder Advisors shall agree to keep such information confidential The Company shall use its commercially reasonable efforts to prevent any applicable confidentiality agreement from restricting the conveyance of the foregoing information to the Initial Consenting Noteholders. (iic) If at any time following the Alternative Transaction Proposal execution of this Agreement, the Company receives a request for material non-public information, or to enter into discussions, from a Person that proposes to the Company an unsolicited bona fide proposal that did not result or arise from any a breach of this Section 5.2.Agreement (and which has not been withdrawn) and the Company determines, in good faith following receipt of advice from outside legal and financial advisors, that such proposal constitutes or could reasonably be expected to constitute or lead to a Superior Proposal (disregarding, for the purposes of such determination, any due diligence access condition to which such proposal is subject), then the Company may: (i) Furnish nonpublic provide the Person making such proposal with, or access to, information regarding the Company, but only to the extent that the Initial Consenting Noteholder Advisors have previously been, or are concurrently, provided with access to the same information; and/or (ii) enter into, participate in, facilitate and maintain discussions or negotiations with, or otherwise cooperate with or assist the Person or Group making such Alternative Transaction Proposalproposal with respect to such proposal, provided that if, and only if: (Aiii) the Company first shall have received from such Person an executed has entered into a confidentiality agreement containing on market terms at least as restrictive with regard to Company’s confidential that will preserve the confidentiality of information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting provided by the Company from fulfilling its obligations under this Agreement or if the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has alternative proposal does not been previously so furnished to Acquiror)proceed; and (iiiv) Engage the Company has been, and continues to be, in discussions or negotiations compliance in all material respects with such Person or Group with respect to such Alternative Transaction Proposalthis Section 10.

Superior Proposal. Notwithstanding anything to (a) At any time during the contrary contained in Section 5.2(a), in the event that prior to the time that Company Stockholder Approval has been obtainedExclusivity Period, the Company receives Board may furnish information to, and enter into discussions with, a bona fide Person who has made an unsolicited written Alternative Transaction proposal or offer regarding an Acquisition Proposal (as defined below), and with respect to which is determined to be, or which (i) the Company Board determines has determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal (as defined below), (ii) the Company Board has determined, in its good faith judgment after consultation with outside legal counsel and its financial advisor) is reasonably likely to becomecounsel, a that, in light of such Superior Proposal, the Company failure to furnish such information or the Company Board may then take the following actionsto enter into such discussions would result in a breach of its fiduciary obligations under applicable Law, but only if (i) (Aiii) the Company Board determines in good faith, after consultation has provided written notice to Parent of its intent to furnish information or enter into discussions with its outside legal counsel, that it is required such Person at least three Business Days prior to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Lawtaking any such action, and (Biv) the Company Board has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received obtained from such Person an executed confidentiality agreement containing terms at least as restrictive with regard confidentiality provisions no less favourable to Company’s confidential information as the Company than those contained in the Confidentiality Agreement, which provided that such confidentiality agreement shall not include any provision having preclude such Person from making the actual or purported effect Acquisition Proposal. Upon the receipt of restricting a Superior Proposal, the Company from fulfilling its obligations under shall be entitled to withdraw the Recommendation, and terminate this Agreement or and the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information Transactions immediately prior to such Person or Group, it furnishes such nonpublic information to Acquiror (entering into a binding agreement relating to the extent such nonpublic information has not been previously so furnished to Acquiror); andSuperior Proposal. (iib) Engage The Company agrees that in addition to the obligations of the Company set forth in paragraph (a) of this Section 6.02, immediately upon receipt thereof, the Company shall advise Parent in writing of any request for information or any Acquisition Proposal, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal and the terms and conditions of such request for information, Acquisition Proposal, inquiry, discussions or negotiations and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Person or Group group making any such request for information, Acquisition Proposal or inquiry or with whom any discussions or negotiations may be taking place. The Company agrees that it shall keep Parent informed of the status, terms and material details (including amendments or proposed amendments) of any such request for information, Acquisition Proposal or inquiry and keep Parent informed as to the details of any information requested of or provided by the Company and as to the status and material terms of all substantive discussions or negotiations with respect to any such Alternative request, Acquisition Proposal or inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company that may be provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to Parent. (c) The Company shall as promptly as practicable reaffirm the Recommendation of the Transaction by press release after any written Acquisition Proposal (which is determined not to be a Superior Proposal) is publicly announced or made.

Superior Proposal. Notwithstanding anything Section 5.04(a), prior to the contrary contained receipt of the Requisite Company Vote, the Company Board, on the one hand, and prior to the receipt of the Requisite Parent Vote, the Parent Board, on the other hand, directly or indirectly through any Representative, may, subject to Section 5.04 (c): (i) participate in Section 5.2(a)negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board or Parent Board, as applicable, believes in good faith, after consultation with outside legal counsel and, in the event case of Parent, Parent’s financial advisor, as applicable, constitutes or would reasonably be expected to result in a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to such party or any of its respective Subsidiaries (if any) pursuant to an executed confidentiality agreement that prior constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes to the time that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines in good faith other party); (after consultation with its outside legal counsel iii) following receipt of and its financial advisor) is reasonably likely to become, on account of a Superior Proposal, make a Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable; and/or (iv) take any action that any court of competent jurisdiction orders such party to take (which order remains unstayed), but in each case referred to in the Company or foregoing clauses (i) through (iv), only if the Company Board may then take the following actionsor Parent Board, but only if (i) (A) the Company Board as applicable, determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to cause it is required to do so to comply with be in breach of its fiduciary obligations to duties under applicable Law. Nothing contained herein shall prevent the Company Stockholders Board or Parent Board, as applicable, from disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under Applicable Lawthe Exchange Act, and the Business Corporations Act (BAlberta) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction ProposalNational Instrument 61-101, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposalas applicable, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as a Takeover Proposal, if the Confidentiality Agreementparty determines, which confidentiality agreement shall not include any provision having the actual or purported effect after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposalapplicable Law.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.3(a), in the event that if, prior to the time that the Company Stockholder Approval has been obtained, the Company receives a an unsolicited, bona fide written Alternative Transaction Proposal from a third party, as applicable, which is the Company’s Board of Directors has determined to be, or which the Company Company’s Board determines of Directors has in good faith (after consultation with its outside legal counsel and its financial advisor) determined is reasonably likely to become, (in either case, after consultation with its outside financial advisor and its outside legal counsel), a Superior Proposal (without regard to the matters referred to in clauses (C) and (D) of the “Superior Proposal” definition contained herein, but only to the extent not known (or capable of being known) at the time of receipt of such Alternative Transaction Proposal), then the Company or the Company Board may then take the following actions, but only if if: (ix) (A) the Company Company’s Board of Directors determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders its stockholders under Applicable Delaware Law, and (B) the Company has given Acquiror Parent at least two business days twenty-four (24) hours’ prior written notice of its intention to take any of the following actions and of has disclosed to Parent the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, ; and (iiy) the Alternative Transaction Proposal did not result or arise from any breach Company shall have previously complied with the provisions of this Section 5.2.6.3: (i) Furnish nonpublic furnish non-public information to the Person or Group third party making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person third party an executed confidentiality agreement containing (1) customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s behalf, the terms of which are at least as restrictive with regard to Company’s confidential information as the terms contained in the Confidentiality Agreement, and (2) a standstill provision, the term of which is at least as long as the term contained in the Confidentiality Agreement, and the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement (except that such confidentiality agreement shall contain additional provisions that expressly permit the Company to comply with the provisions of this Section 6.3), which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and shall require such third party to agree to the same employee non-solicitation provisions, and covering the same period, as set forth in the Confidentiality Agreement, and (B) contemporaneously with furnishing any such nonpublic non-public information to such Person or Groupthird party, it the Company furnishes such nonpublic non-public information to Acquiror Parent (to the extent such nonpublic non-public information has not been previously so furnished to Acquirorfurnished); and (ii) Engage engage in discussions or negotiations with such Person or Group the third party with respect to such the Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)If, in the event that prior to the time Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines of Directors of PARENT concludes in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, constitutes a Superior Proposal, any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), except that the Company closing of any Superior Proposal evidenced by an Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (e) below and if such right is not exercised, BUYER’s receipt of the payment of the Termination Fee pursuant to subparagraph (e) below and termination of this Agreement (without any cost, liability or the Company Board may then take the following actions, but only if obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within one (1) Business Day), make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to BUYER, and (iii) shall not enter into any confidentiality provisions restricting the provision of such materials to BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Superior Proposal, (A) the Company Board determines in good faithshall be designated "Trade Secret" by SELLER, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations (B) shall be subject to the Company Stockholders under Applicable Lawtrade secret protocol established by SELLER attached hereto as Schedule 6.a., and (BC) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive be kept confidential by BUYER in accordance with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction ProposalLetter.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a), (x) in the event that the Company receives after the date of this Agreement and prior to the time that Company Stockholder Approval has been obtainedOffer Acceptance Time, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which that did not result from a breach of this Section 5.2 and that the Company Board Special Committee determines in good faith (after consultation with its outside legal counsel and its financial advisor) is to be, or to be reasonably likely to becomelead to, a Superior Proposal, or (y) prior to the Keep-Shop Expiration Time, with respect to any Alternative Transaction Proposal made by an Excluded Party, the Company or the Company Board and its Representatives may then take the following actions, but only if : (i) (A) the Company Board determines in good faith, after consultation Furnish any nonpublic information with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations respect to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention Subsidiaries to take any of the following actions and of the identity of the Person or Group group (and their respective Representatives) making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information afford access to the Person or Group making such Alternative Transaction Proposalbusiness, provided that (A) properties, assets, books and records of the Company first shall have received or any of its Subsidiaries; provided, that prior to furnishing any such information, it receives from such Person or group (other than an Excluded Party which is already party to a confidentiality agreement with the Company) an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information in all applicable matters as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or terms contained in the Confidentiality Agreement and (B) contemporaneously with furnishing any other than de minimis differences); provided, further, that such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not previously been previously so furnished made available to Acquiror)Parent or is provided promptly to Parent; and (ii) Engage in discussions or negotiations with such Person or Group group (and their Representatives) with respect to such Alternative Transaction Proposal. In no event may the Company or any of its Subsidiaries or any of their Representatives directly or indirectly reimburse or pay, or agree to reimburse or pay, the fees, costs or expenses of, or provide or agree to provide any compensation to, any Person or group (or any of its or their Representatives or potential financing sources) who makes an Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything the foregoing, nothing contained in this Section 7 shall prohibit the Company’s Board of Directors (the “Company Board”) from taking and disclosing to the contrary Company’s shareholders its position with respect to any tender or exchange offer by a third party as required by law, based on the advice of the Company’s outside advisors. Notwithstanding the foregoing, prior to the Company Shareholders Meeting, the Company and its Representatives may furnish non-public information concerning its business, properties or assets to any Person pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in Section 5.2(a)the Confidentiality Agreement and may negotiate and participate in discussions, negotiations and inquiries with such Person concerning an Acquisition Proposal if, but only if, such person has, in the event that prior to absence of any violation of this Section 7 by the time that Company Stockholder Approval has been obtainedCompany, the Company receives submitted a bona fide written Alternative Transaction proposal to the Company relating to any such Acquisition Proposal which is determined to be, or which the Company Board determines in its good faith (faith, after consultation consultations with its outside legal counsel and its financial advisor) advisors, is or is reasonably likely expected to become, lead to a Superior ProposalProposal (as defined below). From and after the date hereof and prior to the Company Shareholders Meeting, the Company or shall promptly (and in any event within twenty-four (24) hours) notify the Parent in the event that the Company Board may then take the following actions, but only if or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indications that an Acquisition Proposal may be prepared by a third party, (Aii) the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations any request for non-public information relating to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice or any of its intention Subsidiaries other than requests for information that are clearly unrelated to take a potential Acquisition Proposal, or (iii) any of the following actions inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent promptly (and of in any event within such twenty-four (24) hour period) with the identity of the such Person and a copy of such Acquisition Proposal, indication, inquiry or Group making request (or, where such Alternative Transaction Proposal and communication was not in writing, a description of the material terms and conditions of such Alternative Transaction Acquisition Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep the Parent reasonably informed on a current basis (and in any event no later than twenty-four (ii24) hours after the Alternative Transaction occurrence of any changes, developments, discussions or negotiations, unless these can be considered de minimis) of the status of any Acquisition Proposal, indication, inquiry or request (including the terms and conditions thereof and of any modification thereto), and any developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any oral inquiries or discussions, unless such communication can be considered de minimis. Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours) notify the Parent orally and in writing if it determines to provide information or to engage in discussions or negotiations concerning an Acquisition Proposal did and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the non-public information described in this Section 7 to the Parent, and the Company shall not, and shall cause its Subsidiaries not result or arise from to, enter into any breach agreement with any Person subsequent to the date of this Section 5.2. (i) Furnish nonpublic Agreement that would restrict the Company’s ability to provide such information to the Person or Group making such Alternative Transaction Proposal, provided that Parent. The Company (A) the Company first shall have received from such Person an executed not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreementwhich it or any of its Subsidiaries is or becomes a party, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing shall, and shall cause its Subsidiaries to, use reasonable best efforts to enforce the provisions of any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror agreement against third parties. The Company will promptly (and in any event within twenty-four (24) hours) provide to the extent such nonpublic Parent any information has concerning the Company or its Subsidiaries provided or made available pursuant to this Section 7 which was not been previously so furnished provided or made available to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposalthe Parent.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)this Agreement, in the event that at any time prior to the time that receipt of the Company Stockholder Approval has been obtainedShareholder Approval, the Company receives Board (or any duly authorized committee thereof) may, in response to the receipt of a bona fide fide, written Alternative Transaction Competing Proposal which received after the date hereof that did not result from a breach of ‎Section 5.03(a) and is determined to benot withdrawn, or which make a Change of Company Recommendation (and, if so desired by the Company Board determines (or any duly authorized committee thereof) terminate this Agreement in good faith (after consultation accordance with its outside legal counsel and its financial advisor‎Section 7.01(d) is reasonably likely in order to become, a Superior Proposal, cause the Company or the Company Board may then take the following actionsto enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Competing Proposal), but only if if: (i) (A) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that it is required (A) failure to do so take such action would be reasonably likely to comply be inconsistent with its fiduciary obligations to the Company Stockholders duties under Applicable Law, applicable Law and (B) such Competing Proposal constitutes a Superior Proposal; (ii) the Company has given Acquiror provides Parent written notice at least two business days four (4) Business Days prior written notice to effecting a Change of its Company Recommendation of the Company Board’s intention to take such action (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal and include a copy of all definitive agreements to effect such Superior Proposal to which the Company or any Company Subsidiary would be a party and any financing commitments to which the person making such Competing Proposal would be a party (subject to customary redactions to debt financing commitments) (it being agreed that neither the delivery of the following actions Notice of Change of Recommendation by the Company nor the public disclosure thereof shall constitute a Change of Company Recommendation); (iii) if requested by Parent, prior to effecting such Change of Company Recommendation, the Company shall, and shall direct its applicable Representatives to, negotiate with Parent in good faith during the four (4) Business Days commencing on the date of delivery of the identity Notice of Change of Recommendation regarding adjustments in the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposalthis Agreement proposed by Parent in writing; (iv) no earlier than the end of the four (4) Business Day period beginning after the delivery of the Notice of Change of Recommendation, the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and (ii) outside legal counsel and after considering any proposed amendments to the Alternative Transaction Proposal did not result or arise from any breach terms and conditions of this Section 5.2. Agreement proposed by Parent in writing during such four (i4) Furnish nonpublic information to the Person or Group making such Alternative Transaction ProposalBusiness Day period, provided that (A) the Company first shall have received from failure to take such Person an executed confidentiality agreement containing terms at least as restrictive action would be reasonably likely to be inconsistent with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations fiduciary duties under this Agreement or the Confidentiality Agreement applicable Law and (B) contemporaneously with furnishing such Competing Proposal continues to constitute a Superior Proposal; provided, that any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (change to the extent financial terms (including any change to the amount or form of consideration payable) or other material amendment to the terms of such nonpublic information has Competing Proposal (whether or not been previously so furnished in response to Acquirorany changes proposed by Parent pursuant to clause (iii); and ) shall require a new Notice of Change of Recommendation and an additional two (ii2) Engage in discussions or negotiations with Business Day period from the date of such Person or Group with respect to such Alternative Transaction Proposalnotice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days).

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a6.3(a), in the event that if, prior to the time that Company Stockholder Approval has been obtained, the Company receives a an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined to be, or which the Company Company’s Board determines of Directors has in good faith concluded (after following the receipt of advice from and consultation with its outside legal counsel and its financial advisorthe Company Financial Adviser of national standing) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if if: (i) (A) the Company Company’s Board of Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel, that it is required the failure to do so to comply would be inconsistent with its fiduciary obligations to the Company Stockholders its stockholders under Applicable Delaware Law, and ; (Bii) the Company has given Acquiror at least two business days Parent prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, actions; and (iiiii) the Alternative Transaction Proposal did not result or arise from any breach Company shall have previously complied with the provisions of this Section 5.2.6.3: (i) Furnish nonpublic furnish non-public information to the Person or Group third party making such Alternative Transaction Proposal, provided that (A) the Company first shall have first received from such Person third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s behalf, the terms of which are at least as restrictive with regard to Company’s confidential information as the terms contained in the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement Agreement, and (B) contemporaneously with furnishing any such nonpublic non-public information to such Person or Groupthird party, it the Company furnishes such nonpublic non-public information to Acquiror Parent (to the extent such nonpublic non-public information has not been previously so furnished to Acquirorfurnished); and (ii) Engage engage in discussions or negotiations with such Person or Group the third party with respect to such the Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)this Agreement, in if, at any time from and after the event that No-Shop Period Start Date and prior to the time that Company Stockholder Approval has been obtainedOffer Closing, the Company receives a bona fide written Alternative Transaction Takeover Proposal which that is determined to benot withdrawn from any Person that did not result from or involve a breach of Section 6.03(b), or which the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company or the Company Board may then take the following actions, but only if (i) (A) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, (i) that it is required such Takeover Proposal constitutes or would reasonably be expected to do so lead to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction a Superior Proposal, and (ii) failure to take the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that actions set forth in clauses (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously below would be inconsistent with furnishing the Company Board’s fiduciary duties under applicable Law, then the Company and its Representatives may, in response to such Takeover Proposal, (A) furnish, pursuant and subject to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person that has made such written Takeover Proposal and its Representatives; provided, that the Company shall, (x) provide Parent with a copy of such executed Applicable Confidentiality Agreement promptly (and in no event later than 24 hours) after execution and (y) prior to or substantially concurrently with the delivery to such Person, provide to Parent any such nonpublic information or data concerning the Company or any of its Subsidiaries that is provided or made available to such Person or Groupits directors, it furnishes officers, employees, investment bankers, attorneys, accountants and other advisors or Representatives, whether in writing or orally, unless such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously provided to Parent, in which case the Company shall promptly (and in no event later than 24 hours) provide written notification to Parent of the information and data so furnished provided (unless such information was not previously provided to AcquirorParent or Merger Sub at the request of Parent or Merger Sub or to comply with applicable Law); and and (iiB) Engage engage in, facilitate or otherwise participate in discussions or negotiations with the Person making such Person or Group Takeover Proposal and its Representatives regarding such Takeover Proposal. The Company Board shall promptly (and in any event within 24 hours) notify Parent in writing if the Company Board makes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) shall limit the Company’s rights prior to the Cut-Off Time with respect to such Alternative Transaction Proposalan Excluded Party.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a), in the event that prior to the time that Company Stockholder Approval has been obtained, the Company receives a an unsolicited, bona fide written Alternative Transaction Proposal which is determined to be, or which the Special Committee and the Company Board determines in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, a Superior Proposal, the Company Company, the Special Committee or the Company Board may then take the following actions, but only if (i) (A) each of the Special Committee and the Company Board determines in good faith, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) it shall not have breached any of the Alternative Transaction Proposal did not result or arise from any breach provisions of this Section 5.2.: (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and shall require such Person to agree to customary employee non-solicitation provisions covering at least 12 months from execution of such confidentiality agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)If, in the event that prior to the time Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines of Directors of PARENT concludes in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, constitutes a Superior Proposal, any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement, except that such Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (e) below and if such right is not exercised, BUYER’s receipt of the Company payment of the Termination Fee pursuant to subparagraph (E) below, and termination of this Agreement (without any cost, liability or the Company Board may then take the following actions, but only if obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (Aand in any event within one (1) Business Day), make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Company Board determines in good faith, after consultation with its outside legal counselPremises, that it is required has been provided by the Qualified Purchaser in connection with the Alternative Acquisition Agreement that has not previously been provided to do so to comply with its fiduciary obligations to the Company Stockholders under Applicable LawBUYER, and (Biii) shall not enter into any confidentiality provisions restricting the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions provision of such materials to BUYER; provided that, the Alternative Transaction ProposalAcquisition Agreement, and (ii) any other materials given to BUYER in connection with the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction ProposalAcquisition Agreement, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive be designated "Trade Secret" by SELLER and shall be kept confidential by BUYER in accordance with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction ProposalLetter.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a5.7(a), in the event that if, prior to the time that Company the Seller Stockholder Approval has been obtained, the Company Seller receives a an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined to be, or which the Company Seller’s Board determines of Directors has in good faith concluded (after following the receipt of advice from and consultation with its outside legal counsel and its financial advisorthe Seller Financial Advisor of national standing) is would reasonably be likely to become, a Superior Proposal, the Company or the Company Board Seller may then take the following actions, but only if if: (i) (A) the Company Seller’s Board of Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel, that it is required the failure to do so to comply would be inconsistent with its fiduciary obligations to the Company Stockholders its stockholders under Applicable Delaware Law; (ii) Seller has, on one occasion with respect to each Alternative Transaction Proposal (and (B) the Company has all amendments and modifications relating thereto), given Acquiror at least two business days Buyer prior written notice of its intention to take any of the following actions actions; and (iii) Seller shall have previously complied with the provisions of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of this Section 5.7(c) with respect to such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2.: (i) Furnish nonpublic furnish non-public information to the Person or Group third party making such Alternative Transaction Proposal, provided that (A) the Company first Seller shall have first received from such Person third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on Seller’s behalf, the terms of which are at least as restrictive with regard to Company’s confidential information as the terms contained in the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company Seller from fulfilling its obligations under this Agreement or the Confidentiality Agreement Agreement, and (B) contemporaneously with furnishing any such nonpublic non-public information to such Person or Groupthird party, it Seller furnishes such nonpublic non-public information to Acquiror Buyer (to the extent such nonpublic non-public information has not been previously so furnished to Acquirorfurnished); and (ii) Engage engage in discussions or negotiations with such Person or Group the third party with respect to such the Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 5.2(a)If, in the event that prior to the time Closing Date, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that Company Stockholder Approval has been obtained, the Company receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines of Directors of PARENT concludes in good faith (after consultation with its outside legal counsel and its financial advisor) is reasonably likely to become, constitutes a Superior Proposal, any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), except that the Company closing of any Superior Proposal evidenced by an Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (e) below and if such right is not exercised, BUYER’s receipt of the payment of the Termination Fee pursuant to subparagraph (e) below and termination of this Agreement (without any cost, liability or the Company Board may then take the following actions, but only if obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within one (1) Business Day), make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to BUYER, and (iii) shall not enter into any confidentiality provisions restricting the provision of such materials to BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Superior Proposal, (A) the Company Board determines in good faithshall be designated "Trade Secret" by SELLER, after consultation with its outside legal counsel, that it is required to do so to comply with its fiduciary obligations (B) shall be subject to the Company Stockholders under Applicable Lawtrade secret protocol established by SELLER attached hereto as Schedule 6.a., and (BC) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive be kept confidential by BUYER in accordance with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction ProposalLetter.