Common use of Superior Proposals Clause in Contracts

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisors) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that subject to applicable Law, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such Person.

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject written, bona fide Acquisition Proposal prior to Section 5.4(e)the consummation of the Offer that did not result, directly or indirectly, from the date a breach of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company Section 6.1(a) and the Company Board (or a any duly authorized committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) that such Acquisition Proposal either constitutes is, or could reasonably be expected to lead to, a Superior Proposal (provided that the Company and its Representatives may contact such Person or Group prior to such conclusion to clarify the terms and conditions thereof and solely to determine whether such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal), then, notwithstanding anything to the contrary contained in Section 6.1(a), the Company may (i) enter into discussions or negotiations with such Person or Group and parties to the Tender Agreements regarding such Acquisition Proposal and (ii) deliver or make available to such Person or Group non-public information regarding the Company and the Subsidiaries and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Subsidiaries to the Person or Group who made such Acquisition Proposal and such Person’s or Group’s Representatives; provided that, in each such case, (A) the Company Board shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such actions action would be reasonably likely to be inconsistent with its fiduciary obligations to the directors’ fiduciary duties stockholders of the Company under applicable Applicable Law; provided, further(B) prior to making available to any such Person any material non-public information, that subject the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement, (C) the Company shall provide Parent written notice of such actions within one Business Day of taking any such action in clause (i) or (ii) above and (D) prior to applicable Lawor substantially contemporaneously with delivering or making available any such non-public information to such Person, the Company shall provide to Parent and Merger Sub any deliver or make available such non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)5.3, from the date of this Agreement hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) Special Committee may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), contact the Person or group of Persons making such Acquisition Proposal to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Personhereof, in each case with respect to an Acquisition Proposal that was did not the result of a from any material breach of Section 5.4(a5.3(a); provided, thathowever, that prior thereto, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) that (i) such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected to lead to a Superior Proposal Proposal, and (ii) the failure to take such the actions contemplated by this Section 5.3(b) would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Lawlaw; provided, and provided further, however, that subject to applicable Law, the Company shall provide will promptly (and in any event within 24 hours) make available to Parent and Merger Sub any non-public information or data concerning the Company Group that is provided to any such Person given such access or its Representatives that was not previously made available to Parent Parent; and provided further, however, that if any such Person or Merger Sub prior to or substantially concurrently to (and within twentyits Representatives is a competitor of the Company Group, the Company Group shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive non-four (24) hours of) the time it is provided public information to such PersonPerson in connection with any actions permitted by this Section 5.3(b) other than in accordance with “clean room” or other similar procedures designed to limit any potential adverse effect on the Company from sharing such information.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.45.3, but subject from the No-Shop Period Start Date (or, with respect to Section 5.4(e)an Excluded Party, from the date of this Agreement hereof) until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) Special Committee may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisors), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the No-Shop Period Start Date (or, with respect to an Excluded Party, after the date of this Agreementhereof), and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was did not the result of a from any material breach of Section 5.4(a5.3(b); provided, thathowever, that the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected likely to lead to a Superior Proposal Proposal, and the Special Committee has determined in good faith (iiafter consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 5.3(c) would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Lawlaw; provided, and provided further, however, that subject to applicable Law, the Company shall provide will promptly (and in any event within 24 hours) make available to Parent and Merger Sub any non-public information or data concerning the Company Group that is provided to any such Person given such access or its Representatives that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, (i) participate or engage in discussions or negotiations with, (ii) furnish any non-public information relating to the Company or any of its Subsidiaries to, or (iii) afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Subsidiaries, in the case of clause (ii) and clause (iii), pursuant to an Acceptable Confidentiality Agreement to any Person or its such Person’s Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, contact such Person to clarify the terms and conditions thereof and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representativessuch Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was did not the result of from a material breach of Section 5.4(a5.3(a) or this Section 5.3(b) (other than a de minimis breach); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel and financial advisorscounsel) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the that failure to take such actions action would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; provided, further, that subject . Subject to applicable LawLaw and any applicable “clean team” or similar arrangement, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) with the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to the contrary set forth contained in this Section 5.4Agreement, but subject to Section 5.4(e), if at any time from and after the date of this Agreement until hereof and prior to obtaining the Company’s receipt of the Requisite Company Stockholder Approval, the Company receives a written Company Takeover Proposal that is not withdrawn from any Person (and, if such written Company Takeover Proposal is received after the date that Parent delivers Evidence of Funding to the Company pursuant to Section 6.10(a)(ix), such written Company Takeover Proposal did not result from a material breach of Section 6.4(a)(ii)), and if the Company Board (after considering the recommendation of the Company Special Committee) has determined in good faith, after consultation with the Company’s independent financial advisor and outside legal counsel, (i) that such Company Takeover Proposal is bona fide and constitutes or could reasonably be expected to lead to a committee thereofCompany Superior Proposal, and (ii) failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly through one or more of their Representativesin response to such Company Takeover Proposal, participate or engage in discussions or negotiations with(A) furnish, furnish any pursuant to an Acceptable Confidentiality Agreement, information (including non-public information relating information) with respect to the Company or any of and its Subsidiaries to, or and afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement the Person that has made such written Company Takeover Proposal and its Representatives (provided that the Company shall, prior to or concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent) and (B) engage in or otherwise participate in discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal; provided that has made, renewed or delivered to the Company and its Representatives may contact any Person in writing (with a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist request that any response from such Person (and its Representativesis in writing) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition a Company Takeover Proposal that was not the result of a material breach of Section 5.4(a); provided, that, to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Company Board may take the foregoing actions only if Takeover Proposal constitutes a Company Superior Proposal ​ (without the Company Board (or a any committee thereof, including the Company Special Committee) has determined being required to make the determination in good faith (after consultation with its outside legal counsel and financial advisors) the foregoing clauses (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that subject to applicable Law, the )). The Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to promptly (and in any event within twenty-four (24) hours ofhours) notify Parent in writing if the time it is provided Company Board makes the determinations set forth in this Section 6.4(b), and shall not take any of the actions set forth in clauses (A) and (B) prior to providing such Personnotice.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, 5.3 (but subject to the provisos in this Section 5.4(e5.3(b)), from the date of this Agreement until prior to the Company’s receipt of the Requisite Stockholder Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement, the Company and (acting on the Company Board (or a committee thereofrecommendation of the Special Committee) may, directly or indirectly through one or more of their Representativesmay authorize its Representatives to, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written such an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, thathowever, that the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal Proposal, and the Special Committee has determined in good faith (iiafter consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 5.3(b) would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Law; and provided, further, however, that subject to applicable Law, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to will promptly (and in any event within twenty-four (24) hours ofof provision of such information to such Person or its Representative) make available to Parent any non-public information concerning the time Company or any of its Subsidiaries that it is has provided to any such PersonPerson or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) a written, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and bona fide Acquisition Proposal that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would could reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.3(a), the Company may, so long as the Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the Company and its Subsidiaries; provided that, in each such case, the Company, its Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, its Subsidiaries or any Company Representative shall have violated any of the provisions of this Section 5.3 in any material respect, (B) the Company Board first shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such actions action would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; providedApplicable Legal Requirements, further(C) prior to making available to any such Person any material non-public information, that subject the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be provided to applicable LawParent, for informational purposes only, within forty-eight (48) hours of its execution) and (D) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall provide to Parent and Merger Sub any have delivered or made available such non-public information or data that is provided to any Person given Parent (to the extent such access that was non-public information has not previously been delivered or made available by the Company to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent).

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)4.3, from the date of this Agreement Date until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly indirectly, through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations withwith or (ii) pursuant to an Acceptable Confidentiality Agreement, (1) furnish any non-public information relating to the Company Group to or any of its Subsidiaries to, or (2) afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to Group, in each case, any Person or and its Representatives (including prospective debt and equity financing sources and/or their respective Representatives) that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after that did not result from a material breach of Section 4.3; provided that the date of this Agreement, Company and otherwise facilitate such Acquisition Proposal or assist its Representatives may contact any Person in writing (with a request that any response from such Person (and its Representativesis in writing) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not solely to clarify any ambiguous terms and conditions thereof which are reasonably necessary to determine whether the result of Acquisition Proposal constitutes a material breach of Section 5.4(a); provided, that, Superior Proposal. The Company and the Company Board (or a committee thereof) may only take the foregoing actions only contemplated by the preceding sentence if (A) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal and (B) the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (ithat the failure to take the actions contemplated by this Section 4.3(c) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; provided, further, that subject pursuant to applicable Law, the . The Company shall will provide to Parent and Merger Sub its Representatives any non-public information or data that is provided to any Person or its Representatives given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to with (and within but in no event later than twenty-four (24) hours ofafter) the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)5.3, from the date of this Agreement hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company Parties and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written Parties an Acquisition Proposal after the date of this Agreementhereof, and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was did not the result of a from any material breach of Section 5.4(a5.3(a); provided, thathowever, the Company Board may take the foregoing actions only if that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected likely to lead to a Superior Proposal Proposal, and the Company Board (iior a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 5.3(b) would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Lawlaw; provided, and provided further, however, that subject to applicable Law, the Company shall provide will promptly (and in any event within 24 hours) make available to the Parent and Merger Sub Entities any non-public information or data concerning the Company Group that is provided to any such Person given such access or its Representatives that was not previously made available to the Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonEntities.

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject to Section 5.4(e)written, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and bona fide Acquisition Proposal that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would could reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.3(a), the Company may, so long as the Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries and the Company Representatives shall have violated any of the provisions of this Section 5.3 in any material respect, (B) the Company Board first shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such actions action would be reasonably likely to be inconsistent with its fiduciary obligations to the directors’ fiduciary duties Company’s stockholders under applicable Law; providedApplicable Legal Requirements, further(C) prior to making available to any such Person any material non-public information, that subject the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be provided to applicable LawParent, for informational purposes only, within one Business Day of its execution), (D) prior to engaging in any discussions, providing to Parent written notice of its intent to engage in such discussions and (E) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall provide to Parent and Merger Sub any have delivered or made available such non-public information or data that is provided to any Person given Parent (to the extent such access that was non-public information has not previously been delivered or made available by the Company to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent).

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject to Section 5.4(e)written, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and bona fide Acquisition Proposal that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding Section 5.3(a), the Company may, so long as the Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the failure Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries and the Company Representatives shall have violated any of the provisions of this Section 5.3 in any material respect, (B) prior to take making available to any such Person any material non-public information, the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement, (C) the Company first shall have given Parent advance written notice of its intent to provide non-public information to such Person or enter into discussions with such Person or Group regarding an Acquisition Proposal, which notice shall reasonably specify the actions would be reasonably likely it intends to be inconsistent take, and (D) prior to or contemporaneously with the directors’ fiduciary duties under applicable Law; provided, further, that subject delivering or making available any such non-public information to applicable Lawsuch Person, the Company shall provide to Parent and Merger Sub any have delivered or made available such non-public information or data that is provided to any Person given Parent (to the extent such access that was non-public information has not previously been delivered or made available by the Company to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent).

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and written Acquisition Proposal that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would could reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.3(a), the Company may, so long as the Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries or any Company Representative shall have violated this Section 5.3 in any material respect, (B) the Company Board first shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such actions action would be reasonably likely to be inconsistent with its fiduciary obligations to the directors’ fiduciary duties Company’s stockholders under applicable Law; providedApplicable Legal Requirements, further(C) prior to making available to any such Person any material non-public information, that subject the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be provided to applicable LawParent, for informational purposes only, within one Business Day of its execution) and (D) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall provide to Parent and Merger Sub any have delivered or made available (disregarding the date limitations in the definition of “made available”) such non-public information or data that is provided to any Person given Parent (to the extent such access that was non-public information has not previously been delivered or made available (disregarding the date limitations in the definition of “made available”) by the Company to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent).

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.45.3, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Company Stockholder Approval, the Company and its Subsidiaries and the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) the Company Special Committee may, directly or indirectly indirectly, through one or more of their Representatives, (i) enter into an Acceptable Confidentiality Agreement with any Person or group of Persons that has made or delivered to the Company an Acquisition Proposal (a copy of which the Company shall provide to Parent promptly (but in no event later than twenty-four (24) hours) after the Company’s receipt of the counterparty’s executed copy thereof) and, pursuant thereto participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant Subsidiaries, to an Acceptable Confidentiality Agreement to any such Person or group of Persons or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its their respective Representatives) with such Acquisition Proposal if requested by such Person, in each case (x) with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions 5.3(a) and (y) only if the Company Board (upon the recommendation of the Company Special Committee) or a committee thereof) the Company Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) that (i1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to result in a Superior Proposal and (ii2) the failure to take such actions would reasonably be reasonably likely expected to be inconsistent with the directors’ its fiduciary duties under applicable Law; provided, furtherhowever, that subject to applicable Law, the Company shall will provide to Parent and Merger Sub its Representatives any non-public information or data that is provided to any Person or its Representatives given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to with (and within but in no event later than twenty-four (24) hours ofafter) the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement and continuing until the Companyearlier to occur of the valid termination of this Agreement pursuant to Article VIII and Parent’s receipt of the Requisite Stockholder ApprovalWritten Consent, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its such Person’s Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal Agreement that was did not the result of from a material breach of Section 5.4(a5.3(b) (provided that for purposes of the first sentence of Section 5.3(b) such breach was not immaterial); provided, that, the Company Board may take the foregoing actions only if that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel and financial advisorscounsel) (i) such Acquisition Proposal either constitutes a Superior Proposal or would could reasonably be expected to lead to a Superior Proposal and (ii) that the failure to take such actions do so would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; provided, furtherthat the Company promptly (and in any event within forty-eight (48) hours) notifies Parent in writing if the Company or its Representatives has provided any non-public information concerning the Company or any of its Subsidiaries or Affiliates to any such Person or Group and, that subject to applicable LawLaw and any applicable “clean team” or similar arrangement, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to promptly (and in any event within twentyforty-four eight (2448) hours ofhours) following the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder ApprovalAgreement, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreementhereof or to any such Person’s Affiliates, Representatives, and financing sources, and otherwise facilitate such Acquisition Proposal or provide other due diligence information about the Company Group to assist such Person (and its Affiliates, Representatives, and financing sources) with such Acquisition Proposal if requested by such PersonProposal, in each case with respect to an Acquisition Proposal that was did not the result of a material from any breach of Section 5.4(a6.2(a); provided, thathowever, the Company Board may take the foregoing actions only if that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal Proposal, and the Company Board (iior a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 6.2(c) would be or would reasonably likely be expected to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Lawlaw; provided, and provided further, however, that subject to applicable Law, the Company shall provide will promptly, and in any event within twenty-four (24) hours, make available to Parent and Merger Sub any non-public information or data concerning the Company Group that is provided to any such Person given such access or its Affiliates, Representatives or financing sources that was not previously made available to Parent or Merger Sub prior to any of its Affiliates, Representatives, or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such Personfinancing sources, acting in their capacity as such.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.45.3, but subject until the earlier to Section 5.4(e), from occur of the date termination of this Agreement until pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly indirectly, through one or more of their RepresentativesRepresentatives (including its financial advisor), (i) participate or engage in discussions or negotiations with, (ii) subject to an Acceptable Confidentiality Agreement, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written Acquisition Proposal after the date of this AgreementProposal, and (iii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was not the result of a any material breach of this Section 5.4(a)5.3; provided, thathowever, that the Company and the Company Board (or a committee thereof) may only take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably likely lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisorscounsel) (ithat the failure to take the actions contemplated by this Section 5.3(b) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Law; and provided, further, that subject to applicable Law, the Company shall will provide to Parent and Merger Sub its Representatives any non-public information or data that is provided to any Person or its Representatives given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within but in no event later than twenty-four (24) hours ofafter) the time it is provided to such Person. Notwithstanding anything to the contrary set forth in this Section 5.3, the Company and its Representatives may contact any third party with respect to an Acquisition Proposal solely to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal, it being agreed that if the Company Board (or a committee thereof) receives any clarifications from such third party, the Proposal Notice Period will not be deemed commenced until such clarifications are provided to Parent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, 5.3(a) but subject to the other limitations in this Section 5.4(e)5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) Special Committee may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Special Committee Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group solely pursuant to to, and only following execution of, an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, Agreement if and otherwise facilitate solely to the extent that (i) such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was did not the result of from a material breach of Section 5.4(a); provided5.3, that(ii) prior to taking such action, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has Special Committee must have determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected likely to lead to a Superior Proposal Proposal, and (iiiii) prior to taking such action, the Special Committee must have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 5.3(b) would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under pursuant to applicable Law; provided, and provided further, that subject to applicable Law, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to will promptly (and in any event within twenty-four (24) hours ofthereafter) make available to Parent any non-public information concerning the time it Company Group that is provided to any such PersonPerson or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement and continuing until the Company’s receipt of the Requisite Company Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their its Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to to, any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written an Acquisition Proposal after the date of this AgreementAgreement or to such Person’s Representatives (including potential financing sources of such Person), and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was not the received as a result of a material breach of Section 5.4(a5.3(a); provided, thathowever, that in the Company Board may take the foregoing actions only if event that the Company Board (or a committee thereofacting upon the recommendation of the Special Committee) has determined in good faith (after consultation with its financial advisors and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected likely to lead to a Superior Proposal and (ii) the that failure to take such actions action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that that, subject to applicable Law, the Company shall provide promptly (in any event, within forty-eight (48) hours) make available to Parent and Merger Sub any material non-public information or data concerning the Company that is provided to any such Person given such access or its Representatives pursuant to this Section 5.3(b) that was not previously made available to Parent or and Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonSub.

Superior Proposals. Notwithstanding anything to the contrary set forth contained in this Section 5.4Agreement, but subject if at any time from and after the No-Shop Period Start Date and prior to Section 5.4(e), from obtaining the date of this Agreement until the Company’s receipt of the Requisite Company Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company receives a bona fide written Acquisition Company Takeover Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such from any Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was did not the result of from a material breach of Section 5.4(a6.4(b) (other than any breach that is both immaterial and unintentional); provided, that, the Company Board may take the foregoing actions only and if the Company Board (or a committee thereof) has determined determines in good faith (faith, in its reasonable discretion after consultation with its independent financial advisors and/or outside legal counsel and financial advisorscounsel, (x) (i) that such Acquisition Company Takeover Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Company Superior Proposal Proposal, and (iiy) the failure to take such the actions set forth in clauses (A) and (B) below would be reasonably likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; provided, further, that subject to applicable Law, then the Company shall provide and its Representatives may, in response to Parent and Merger Sub any such Company Takeover Proposal, (A) furnish, pursuant 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 Company Takeover Proposal and its Representatives; provided that competitively sensitive information or data that is provided to any such Person given who is a competitor of the Company or any of its Subsidiaries will only be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such access information or data (provided, that was not previously made available to Parent or Merger Sub the Company shall, prior to or substantially concurrently to (and within twenty-four (24) hours of) with the time it is provided delivery to such Person, provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent) and (B) engage in or otherwise participate in discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal.

Superior Proposals. Notwithstanding anything Section 2.3: (a) the Board of Directors may, subject to compliance with the other provisions of this Section 2.5, withdraw, modify or change any recommendation regarding the Offer or approve, recommend or enter into an agreement in respect of a Superior Proposal, if prior to the contrary set forth in this Section 5.4, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt expiry of the Requisite Stockholder ApprovalOffer, a Superior Proposal is received by, or offered or made to, the Company and or any member of the Board of Directors, Senior Executive or the Financial Advisor or any agent or representative of the Company or Shareholder, and (i) in the determination of the Board of Directors acting in good faith (after receiving the advice of its financial advisor and outside legal advisors), to refrain from taking such action would be inconsistent with the performance by the Board of Directors of its fiduciary duties under applicable Law, (ii) this Agreement is concurrently terminated pursuant to Section 8.1(f) or 8.1(g), and (iii) the Company has previously, or concurrently will have, paid the Non-Completion Fee to the Parent; (b) upon receipt by the Company of (i) any notice, proposal or inquiry that the Board of Directors determines in good faith, could reasonably be expected to lead to, an Alternative Transaction or any amendments thereto, or any other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the Offer or a committee thereofSubsequent Acquisition Transaction, or (ii) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any request for non-public information relating to the Company or any of its Subsidiaries toin connection with an Alternative Transaction, or afford (iv) any request for access to the business, properties, assets, books, books or records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to in connection with an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisors) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that subject to applicable LawAlternative Transaction, the Company shall provide advise the Offeror thereof by telephone promptly, and shall in any event no later than 24 hours thereafter give notice to Parent the Offeror thereof (including identifying the Person proposing such transaction and Merger Sub the terms and conditions of such transaction and include a copy of any documents received by the Company in respect of such transaction). Prior to providing any non-public information to such Person, the Company will confirm in writing to the Offeror that it has received from such Person an executed confidentiality agreement having terms substantially similar to the Confidentiality Agreement (other than the standstill clause restricting such Person from initiating an Alternative Transaction as provided for by paragraph 5 of the Confidentiality Agreement). The Company will provide or data that is make available to the Offeror copies of any information (if not previously provided to the Offeror) provided to any Person given promptly following the provision of such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided information to such Person.Person and in any event within 24

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject written, bona fide Acquisition Proposal prior to Section 5.4(e), from the date of this Agreement until the Company’s receipt consummation of the Requisite Stockholder Approval, the Company and Offer that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined determines in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding anything to the contrary contained in Section 6.1(a), the Company may (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries and the Company Representatives shall have violated any of the provisions of this Section 6.1 in any material respect, (B) the Company Board first shall have determined in good faith (after consultation with its outside legal counsel) that the failure to take such actions would be action is reasonably likely to constitute a breach of its fiduciary obligations to the stockholders of the Company under Applicable Law, (C) the Company first shall have given Parent at least three Business Days advance written notice of its intent to take such actions, which notice shall specify the actions it intends to take, the identity of the Person that submitted such Acquisition Proposal and all of the material terms and conditions of such Acquisition Proposal, (D) prior to making available to any such Person any material non-public information, the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be inconsistent provided to Parent, for informational purposes only, within 24 hours of its execution) and (E) prior to or contemporaneously with the directors’ fiduciary duties under applicable Law; provided, further, that subject delivering or making available any such non-public information to applicable Lawsuch Person, the Company shall provide to Parent and Merger Sub any have delivered such non-public information to Parent (or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior such non-public information; provided that the Company shall have delivered to or substantially concurrently to (and within twentyParent a list identifying all such non-four (24) hours of) the time it is provided to such Personpublic information).

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Company’s advisors), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was did not the result of a from any material breach of Section 5.4(a5.3(a); provided, thathowever, the Company Board may take the foregoing actions only if that (i) the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel and financial advisorscounsel) (i) that such Acquisition Proposal either constitutes a Superior Proposal Proposal, or would reasonably be expected to lead to to, a Superior Proposal Proposal, and (ii) the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such the actions contemplated by this Section 5.3(b) would be or would reasonably likely be expected to be inconsistent with the directors’ its fiduciary duties under obligations pursuant to applicable Law; provided, and provided further, however, that subject to applicable Law, the Company shall provide will promptly (and in any event within 48 hours) make available to Parent and Merger Sub any non-public information or data concerning the Company Group that is provided to any such Person given such access or its Representatives that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its such Person’s Representatives that has made, renewed or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representativessuch Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case case, with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (A) after consultation with its financial advisors and outside legal counsel and financial advisors) (i) such Acquisition Proposal counsel, either constitutes a Superior Proposal or would could reasonably be expected to lead to a Superior Proposal and (iiB) after consultation with its outside legal counsel, that the failure to take such actions do so would be reasonably be likely to be inconsistent with the directors’ its fiduciary duties under applicable Law; providedprovided that, further, that subject to applicable LawLaw and any applicable “clean team” or similar arrangement, the Company shall provide to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Merger Sub prior to or substantially concurrently to promptly (and in any event within twenty-four (2424 hours) hours of) following the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.45.3, but subject to Section 5.4(e), if at any time from and after the date of this Agreement No-Shop Period Start Date until the Company’s receipt of the Requisite Company Stockholder Approval, (x) the Company receives a bona fide written Acquisition Proposal from any Person that did not result, directly or indirectly, from a breach of this Section 5.3, and (y) the Company Board determines in good faith (after consultation with its independent financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (2) the failure to take the actions in clauses (i) and (ii) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Subsidiaries and the Company Board (or a committee thereof) may, directly or indirectly indirectly, through one or more of their Representatives, in response to such Acquisition Proposal, (i) enter into an Acceptable Confidentiality Agreement with such Person that has made or delivered such Acquisition Proposal and (ii) pursuant thereto, participate or engage in discussions or negotiations with, furnish any non-public information or data relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public informationinformation or data, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any such Person or its Representatives Representatives; provided that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisors) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that subject to applicable Law, the Company shall promptly (and in any event within 24 hours) provide to Parent and Merger Sub its Representatives, or promptly (and in any event within 24 hours) provide Parent and its Representatives access to, any non-public information or data that is provided to any Person given such access that was not previously made available to Parent or Parent, Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such Persontheir Representatives.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4Agreement, but subject at any time following the No-Shop Period Start Date and prior to Section 5.4(e), from the date time of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its RepresentativesRepresentatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, 5.3(b) and the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel and financial advisorscounsel) (i) that the failure to take such action would be inconsistent with its directors’ fiduciary duties and (ii) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (ii) the failure to take such actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable LawProposal; provided, further, that subject to applicable Lawprovided that, the Company shall provide access to Parent and Merger Sub any non-public information or data that is provided to any Person given such access that was not previously made available (whether prior to or after the execution of this Agreement) to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) with the time it is provided to such PersonPerson or, with respect to such information conveyed verbally, promptly thereafter; provided, further, that if the Person making such Acquisition Proposal is a competitor of the Company and its Subsidiaries, the Company shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 5.3(c) other than in accordance with “clean room” or other similar procedures designed to limit any potential adverse effect on the Company from sharing such information.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.4(e)Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, subject to compliance with this Section 5.3(b) and Sections 5.3(c)(ii), 5.3(d) and 5.3(e), the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its such Person’s Representatives that has made, renewed or delivered to the Company a bona fide written an Acquisition Proposal (that did not result from a breach of this Section 5.3) after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representativessuch Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel and financial advisorscounsel) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal Proposal, and (ii) that the failure to take such actions action would be reasonably likely to be inconsistent with the directors’ Board’s fiduciary duties under applicable LawLaw and (ii) did not result from a breach of this Section 5.3; provided, further, that subject to applicable LawLaw and any applicable “clean team” or similar arrangement, the Company shall provide to Parent, Proton Parent and Merger Sub any non-public information or information, data and/or access that is provided to any Person given such information, data and/or access that was not previously made available to Parent, Proton Parent or Merger Sub prior to or substantially concurrently to promptly (and in any event within twenty-four (2424 hours) hours of) following the time it is provided to such Person.

Superior Proposals. Notwithstanding anything In the event that any Person or Group submits to the contrary set forth in this Section 5.4Company (and does not withdraw) an unsolicited, but subject to Section 5.4(e), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and written Acquisition Proposal that the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not the result of a material breach of Section 5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined concludes in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of national standing) (i) such Acquisition Proposal either constitutes a Superior Proposal is, or would could reasonably be expected to lead to to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.3(a), the Company may, so long as the Company Stockholder Approval has not yet been obtained, (i) enter into discussions with such Person or Group regarding such Acquisition Proposal and (ii) deliver or make available to such Person non-public information regarding the Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries or any Company Representative shall have violated this Section 5.3 in any material respect, (B) the Company Board first shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such actions action would be reasonably likely to be inconsistent with its fiduciary obligations to the directors’ fiduciary duties Company’s stockholders under applicable Law; providedApplicable Legal Requirements, further(C) prior to making available to any such Person any material non-public information, that subject the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be provided to applicable LawParent, for informational purposes only, within one Business Day of its execution) and (D) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall provide to Parent and Merger Sub any have delivered or made available such non-public information or data that is provided to any Person given Parent (to the extent such access that was non-public information has not previously been delivered or made available by the Company to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the time it is provided to such PersonParent).