Common use of Superior Proposals Clause in Contracts

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1, from the date hereof until the Company’s receipt of the Company Shareholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnel, of the Company, its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, 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 is reasonably likely to lead to a Superior Proposal, and 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 the actions contemplated by this Section 5.1(b) would be inconsistent with its fiduciary duties under applicable Law; and provided further that the Company will promptly (and in any event within 24 hours) make available to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided to such Third Person.

Superior Proposals. Notwithstanding anything (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the contrary set forth in this Section 5.1Selling Subsidiaries) shall, from the date hereof until the Company’s receipt of the Company Shareholder Approvaland Seller shall cause its subsidiaries and its and their officers, the Company and the Company Board directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (or a committee thereof“Representatives”) mayto not, directly or indirectlyindirectly through another Person, (i) solicit, initiate or through one knowingly take any action to facilitate or more encourage the submission of their Representativesany Acquisition Proposal, (ii) enter into or participate or engage in any discussions or negotiations with, furnish any non-public information relating to the Company, its Subsidiaries Sold Entities or Affiliates to, the Securities or afford access to the business, properties, assets, booksbooks or records of the Sold Entities to, records or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other non-public information, similar instrument or agreement constituting or related to any Personnel, of the Company, its Subsidiaries or Affiliates, in each case an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to and Section 5.04(b), subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any material provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect than to any Acquisition Proposal. (b) Notwithstanding Section 5.04(a), at any time from the terms date of this Agreement until consummation of the Confidentiality AgreementClosing, to any Third Person or its Representatives that has made or delivered to the Company if Seller receives a bona fide written Acquisition Proposal made after the date hereof of this Agreement that was unsolicited and did not otherwise result from any a breach of Section 5.1(a5.04(a) (other than any breach and that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, 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 is of Directors of Seller reasonably likely believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and the Company Board (or a committee thereof) has determined in good faith (after consultation with providing written notice to Buyer of its financial advisor and outside legal counsel) that the failure intention to take any such actions, (i) negotiate the actions contemplated by this Section 5.1(b) would be inconsistent terms of, and enter into, a confidentiality agreement with its fiduciary duties under applicable Law; terms and provided further that conditions no less restrictive in the Company will promptly (and in any event within 24 hours) make available to aggregate on such Third Party as the Parent Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives any or financing sources non-public information concerning relating to the CompanySold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Subsidiaries Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal. (c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or Affiliates inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal. (d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless: (i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that is was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal; (ii) Seller has provided to any Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such Third Person action and specifying the reasons therefor; (iii) Seller has provided to Buyer all material documentation and information delivered or its Representatives that was not previously made available to the Parent prior Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to or substantially concurrently the extent such documentation and information has not been previously provided to Buyer); and (but in no event later than 24 hours afteriv) (A) the time Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is provided a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to such Third Personconstitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise). (e) For purposes of this Agreement:

Superior Proposals. Notwithstanding If, at any time prior to the date that the Company Shareholder Approval is obtained, the Company receives an unsolicited, written, bona fide Acquisition Proposal that the board of directors of the Company determines in good faith (after consultation with the Company’s outside legal and financial advisors of national standing) is, or would reasonably be expected to lead to, a Superior Proposal, then, notwithstanding anything to the contrary set forth contained in this Section 5.16.4(a), from the date hereof until the Company’s receipt of the Company Shareholder Approval, may (A) enter into discussions with any Person making such an Acquisition Proposal and (B) deliver or make available to such Person non-public information regarding the Company and the Company Board Subsidiaries (provided that substantially concurrently (and in any event within 24 hours) the Company delivers or a committee thereof) maymakes available to Parent such information to the extent such information was not previously made available to Parent); provided, directly or indirectlythat, or through one or more of their Representativesin each such case, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, its the Company Subsidiaries or Affiliates to, or afford access to and the business, properties, assets, books, records or other non-public information, or to any Personnel, Company Representatives shall have complied with each of the following: (i) none of the Company, its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) Subsidiaries and their respective Representatives shall have violated (other than immaterial breaches) any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, of the provisions of this Section 6.4; (ii) (x) the board of directors of the Company Board (or a committee thereof) has first shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, and 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 deliver or make available such information or engage in such discussions would be reasonably likely to result in a violation of its fiduciary obligations to the Company and the Company’s shareholders under Applicable Law, and (y) the Company provides written notice to Parent immediately after any such determination by the board of directors of the Company and before taking any of the actions contemplated by described in (A) and (B) of this Section 5.1(bsentence; and (iii) would be inconsistent with its fiduciary duties under applicable Law; and provided further that the Company will promptly (and in any event within 24 hours) make prior to delivering or making available to the Parent and its Representatives any such Person any material non-public information concerning information, the Company, its Subsidiaries or Affiliates that is provided to any Company first shall have received from such Third Person or its Representatives that was not previously made available an executed confidentiality agreement on terms no less favorable to the Parent prior to or substantially concurrently (but in no event later Company than 24 hours after) the time it is provided to such Third PersonConfidentiality Agreement.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.15.3, from the date hereof until the Company’s receipt of the Company Shareholder Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly, or through one (1) or more of their Representativesrespective Representatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any information (including non-public information and data) relating to the Company, its Subsidiaries or Affiliates Company Group to, or afford access to the business, properties, assets, books, records or other information (including non-public informationinformation and data), or to any Personnelpersonnel, of the Company, its Subsidiaries or Affiliates, in each case Company Group pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal after 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 date hereof that did not result from of any material breach of Section 5.1(a) 5.3(b); provided, that, the Company and its Representatives may contact any Third Person with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (other than without the Company Board being required to make the determination in the following proviso), it being agreed that if the Company Board receives any breach that is immaterial in scope and effect)clarifications from such Third Person, the Proposal Notice Period will not be deemed commenced until such clarifications are provided to Parent; provided, however, that, prior to taking any such actionsexcept as permitted by the immediately preceding proviso, the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (i) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereofii) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.1(b5.3(c) would be reasonably likely to be inconsistent with its fiduciary duties under pursuant to applicable Law; and provided further provided, further, however, that the Company will promptly (and in any event within 24 hours) make available provide to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives given such access that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 forty-eight (48) hours after) the time it is provided to such Third Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.15.3, from the date hereof until the Company’s receipt of the Company Shareholder Stockholder Approval, the Company and its Subsidiaries and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, (i) contact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party solely to clarify any ambiguous terms and conditions thereof that are necessary to determine whether such Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) being required to make the determination in the following clause (ii)(y)), and (ii) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, Company or its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Company or its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made or delivered to the Company a bona fide an Acquisition Proposal, and otherwise facilitate such Acquisition Proposal after 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 (x) with respect to an Acquisition Proposal that was not the date hereof that did not result from of any material breach of Section 5.1(a5.3(a) and (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, y) only if the Company Board (or a duly authorized committee thereofthereof acting with the full force and authority of the Company Board) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or is would reasonably likely to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof2) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.1(b) enter into discussions regarding such Acquisition Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; and provided further provided, however, that (A) the Company will promptly (and in any event within 24 hours) make available shall provide to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives given such access that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 twenty-four (24) hours after) the time it is provided to such Third Person; (B) the Company and its Subsidiaries shall not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Acquisition Proposals or any Inquiries, discussions or requests with respect to or the making any proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal, in each case, without the prior written consent of Parent; and (C) any competitively sensitive information or data provided to any such Person or group or their Representatives shall be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, on the same basis made available to Parent or its Representatives.

Superior Proposals. 4.7.1 Except as expressly permitted by this Section 4.7, neither the Board of Directors of Consumers nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to PSC, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause Consumers to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding anything the foregoing, in the event that during the Consumers Applicable Period the Board of Directors of Consumers determines in good faith that there is a substantial probability that the adoption of this Agreement by holders of Consumers Common Stock will not be obtained due to the contrary set forth in existence of a Superior Proposal, the Board of Directors of Consumers may (subject to payment of the termination fee pursuant to Section 7.2.4) terminate this Section 5.1Agreement, from but only at a time that is during the date hereof until Consumers Applicable Period and is after the Company’s fifth business day following PSC's receipt of written notice advising PSC that the Company Shareholder ApprovalBoard of Directors of Consumers is prepared to accept a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal; provided, that concurrently with such termination, the Company and the Company Board (or of Directors shall cause Consumers to enter into an Acquisition Agreement with respect to such Superior Proposal. For purposes of this Agreement, a committee thereof) may"Superior Proposal" means any proposal made by a third party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution or through one or similar transaction, for consideration consisting of cash and/or securities, more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnel, than 50% of the Companycombined voting power of the shares of Consumers Common Stock then outstanding or all or substantially all the assets of Consumers which the Board of Directors of Consumers determines in its good faith judgment (based on the written advice of a financial advisor of nationally recognized reputation) to be, its Subsidiaries or Affiliatestaking into account all legal, in each case pursuant financial, regulatory and other aspects of the proposal and the third party making such proposal, (a) reasonably capable of being completed, and (b) more favorable to Consumers' shareholders from a financial point of view and subject to the entry into from a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect strategic point of view than the terms of the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, 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 is reasonably likely to lead to a Superior Proposal, Merger and 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 the actions other transactions contemplated by this Section 5.1(b) would be inconsistent with its fiduciary duties under applicable Law; and provided further that the Company will promptly (and in any event within 24 hours) make available to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided to such Third PersonAgreement.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1Agreement, from the date hereof 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 Company Shareholder Requisite Stockholder Approval, the Company and the Company Board (or a any committee thereof) may, directly or indirectly, or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations withwith any Person or such Person’s Representatives, furnish any non-public information relating to the Company, Company or any of its Subsidiaries to such Person or Affiliates tosuch Person’s ​ ​ Representatives, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Company or any of its Subsidiaries to such Person or Affiliatessuch Person’s Representatives pursuant to, in each case pursuant to and subject to case, an Acceptable Confidentiality Agreement that the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in Company has executed with any material respect than the terms of the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide fide, written Acquisition Proposal after the date hereof that did not result from a breach, in any breach material respect, of Section 5.1(a5.3(a) and that was made or delivered by such Person after the date of this Agreement and otherwise facilitate such Acquisition Proposal or assist such Person (other than any breach and such 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 is immaterial in scope and effect); provided, however, that, prior to taking any such actions, the Company Board (or a committee thereof) has has, prior to the Company first taking any of the foregoing actions, determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that such Acquisition Proposal (i) either constitutes a Superior Proposal or is would reasonably likely be expected to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counselii) that the failure to take the such actions contemplated by this Section 5.1(b) in connection with such Acquisition Proposal would be inconsistent with its fiduciary duties under applicable Law; and provided further that provided, that, the Company will shall (A) provide to Parent and Merger Sub any non-public information or data that is provided to any such Person, that was not previously made available to Parent or Merger Sub prior to or substantially concurrently with the time it is provided to such Person, and if necessary, the Company may provide such information in accordance with applicable Law and any applicable “clean team” or similar arrangement and (B) promptly (and in any event within 24 hoursthe earlier of (x) make available one (1) Business Day or (y) 48 hours thereafter) following any determination of the Company Board made pursuant to the immediately preceding clauses (i) and (ii), provide written notice to Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to of any such Third Person or its Representatives that was not previously made available to determination of the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided to such Third PersonCompany Board.

Superior Proposals. Notwithstanding anything to the contrary set forth contained in Sections 7.7.1 and 7.7.2 or elsewhere in this Section 5.1Agreement, from prior to the date hereof until the Company’s receipt of the Company Shareholder ApprovalEffective Time, the Company and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, may participate or engage in discussions or negotiations with, and furnish any non-public information relating to the Company, its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or and afford access to the properties, books, records, officers, employees and representatives of the Company to any PersonnelPerson, entity or group if such Person, entity or group has delivered to the Company, prior to the date of the Company's meeting of shareholders or action pursuant to Section 1110 of the CGCL, as applicable, and in writing, an Acquisition Proposal which the Special Committee in its reasonable judgment determines if consummated would be more favorable, from a financial point of view, to the Company's shareholders than the transactions contemplated by this Agreement, which determination shall be made only after the Special Committee (i) receives a written opinion of its legal counsel that the Special Committee would breach its fiduciary duties if it did not accept the Acquisition Proposal and (ii) a written opinion of the Company's Financial Adviser to the effect that the Acquisition Proposal is superior, from a financial point of view, to the Company's shareholders than the transactions contemplated by this Agreement (an Acquisition Proposal satisfying such conditions constituting a "Superior Proposal"). In the event the company receives a Superior Proposal, nothing contained in this Agreement (but subject to this Section 7.7.3) will prevent the Special Committee from, on behalf of the Board of Directors, executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to the shareholders of the Company, if the Special Committee determines in accordance with the preceding sentence that its Subsidiaries fiduciary duties require it to do so; in such case, the Special Committee may withdraw, modify, or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms refrain from makings its recommendation of the Confidentiality transactions contemplated by this Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, 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 is reasonably likely to lead to a Superior Proposal, and 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 the actions contemplated by this Section 5.1(bSpecial Committee shall (i) would be inconsistent with its fiduciary duties under applicable Law; and provided further that the Company will promptly (notify Purchaser, and in any event within 24 hours) make available , if any Acquisition Proposal is received by, any such information is requested from, or any such negotiations or discussions are sought to the Parent and its Representatives any non-public information concerning be initiated or continued with, the Company, its Subsidiaries indicating, in connection with such notice, the name of such person and the material terms of such Acquisition Proposal, (ii) provide Purchaser at least 48 hours prior written notice of the Special Committee's intention, on behalf of the Board of Directors of the Company, to execute or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided enter into an agreement relating to such Third PersonSuperior Proposal and (iii) terminate this Agreement by written notice to Purchaser provided no sooner than 48 hours after Purchaser's receipt of a copy of such Superior Proposal.

Superior Proposals. Notwithstanding anything to the contrary set forth in Section 5.8(a) but subject to compliance with the other provisions of this Section 5.15.8(b), from the date hereof until the Companyat any time prior to Seller’s receipt of the Company Shareholder Requisite Stockholder Approval, the Company Seller, its Subsidiaries and the Company Seller Board (or a committee thereof) may, directly or indirectly, or 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, Seller and/or its Subsidiaries or Affiliates (including the Company and its Subsidiaries) to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Seller and/or its Subsidiaries or Affiliates, in each case (including the Company and its Subsidiaries) pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person (or such Person’s Representatives, including prospective debt and equity financing sources and/or their respective Representatives) that has made, renewed, furnished or delivered to Seller or its Representatives that has made or delivered to the Company a bona fide written Acquisition Proposal after the date hereof execution and delivery of this Agreement that did not directly or indirectly result from any a breach of this Section 5.1(a) (other than any breach that is immaterial in scope and effect)5.8; provided, however, that, prior to taking any such actions, that the Company Seller 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 is would be reasonably likely to lead to a Superior Proposal, and the Company Seller 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 the actions contemplated by this Section 5.1(b5.8(b) would or would reasonably be expected to be inconsistent with its fiduciary duties under pursuant to applicable Law; and provided further provided, further, however, that the Seller, the Company and each of their respective Representatives may contact any Person in writing (with a request that any response from such Person is in writing) with respect to an Acquisition Proposal solely to clarify any ambiguous terms and conditions thereof which are reasonably necessary to determine whether the Acquisition Proposal constitutes or would be reasonably likely to lead to a Superior Proposal; and provided, further, that Seller will promptly (and in any event within 24 hours) make available provide to the Parent Buyer and its Representatives any such non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives given such access that was not previously made available to the Parent Buyer prior to or substantially concurrently (but in no event later than 24 hours after) with the time it is provided to such Third Person.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.15.3(c), from the date hereof No-Shop Period Start Date until the Company’s receipt of the Company Shareholder Stockholder Approval, the Company and its Subsidiaries and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, (i) contact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party solely to clarify any ambiguous terms and conditions thereof that are necessary to determine whether such Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) being required to make the determination in the following clause (ii)(y)), and (ii) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, Company or its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Company or its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made or delivered to the Company a bona fide an Acquisition Proposal, and otherwise facilitate such Acquisition Proposal after 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 (x) with respect to an Acquisition Proposal that was not the date hereof that did not result from of any material breach of Section 5.1(a5.3(b) and (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, y) only if the Company Board (or a duly authorized committee thereofthereof acting with the full force and authority of the Company Board) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or is would reasonably likely to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof2) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.1(b) enter into discussions regarding such Acquisition Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; and provided further provided, however, that (A) the Company will promptly (and in any event within 24 hours) make available shall provide to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives given such access that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 twenty-four (24) hours after) the time it is provided to such Third Person; (B) the Company and its Subsidiaries shall not pay, agree to pay or cause to be paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Acquisition Proposals or any Inquiries, discussions or requests with respect to or the making any proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal, in each case, without the prior written consent of Parent; and (C) any competitively sensitive information or data provided to any such Person or group or their Representatives shall be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, on the same basis made available to Parent or its Representatives.

Superior Proposals. (a) Notwithstanding anything to the contrary set forth in this Section 5.1Agreement, from prior to the date hereof until the Company’s receipt of the Company Shareholder ApprovalEffective Time, the Company and the Company Board (or a committee thereof) Parent may, directly to the extent the Special Committee or indirectlythe Board of Directors of Parent by a majority disinterested vote determines, in the good faith exercise of its fiduciary duties, that it would be in the best interests of Parent or through one or more of their Representativesits shareholders to do so, participate or engage in discussions discussion or negotiations with, and furnish any non-public information relating to the Company, its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or and afford access to the properties, books, records, officers, employees and representatives of Parent to any PersonnelPerson, entity or group after such Person, entity or group has delivered to Parent in writing, a proposal to acquire all or a portion of Parent or Parent's assets or business, which the Company, its Subsidiaries Special Committee or Affiliatesthe Board of Directors of Parent by a majority disinterested vote determines, in each case pursuant its good faith reasonable judgment, if consummated would be more favorable to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect Parent or its shareholders than the terms of transactions contemplated by this Agreement (a "Superior Proposal"). In the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, 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 is reasonably likely to lead to ----------------- event Parent receives a Superior Proposal, nothing contained in this Agreement will prevent the Special Committee from recommending and the Company Board (of Directors of Parent from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its shareholders, if the Special Committee or the Board of Directors of Parent by a committee thereof) has determined majority disinterested vote determines in good faith that it is appropriate to do so; in such case, the Special Committee and the Board of Directors of Parent may withdraw, modify or refrain from making its recommendation of the Merger, and, to the extent it does so, Parent may refrain from calling, providing notice of and holding the Parent Shareholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its shareholders to adopt this Agreement and may terminate this Agreement; provided however that Parent shall (after consultation with its financial advisor and outside legal counseli) that the failure to take the actions contemplated by this Section 5.1(b) would be inconsistent with its fiduciary duties under applicable Law; and provided further that the Company will promptly (and in any event within 24 hours) make available to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours afterafter receipt thereof) notify the time it Company that the Special Committee or Parent's Board of Directors, as applicable, has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal and (ii) terminate this Agreement by written notice to the Company provided no sooner than 48 hours after the Company's receipt of a copy of such Superior Proposal (or a description of the material terms and conditions thereof). Nothing contained in this Section 6.12 ------------ (a) shall prevent the Special Committee or the Board of Directors of Parent from --- taking and disclosing to Parent's shareholders a position as required by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender or exchange offer, provided that such disclosure states that no action will be taken by the Special Committee or the Board of Directors of the Company in violation of this Section 6.12. Notwithstanding anything to the contrary in this ------------ Agreement, prior to the Effective Time, Parent may, in connection with a possible Superior Proposal, refer any third party to this Section 6.12 and make ------------ a copy of this Section 6.12 available to a third party. ------------ (b) In the event that the Merger is provided not consummated by virtue of the termination of this Agreement pursuant to such Third PersonSection 6.12(a)(iii) or Section 8.1(c) -------------------- -------------- hereof, Parent shall (i) pay to the Company $7,500,000 and (ii) pay all transaction costs and expenses (including legal, accounting and other professional fees and expenses and other fees described in Section 4.19 hereof), ------------ incurred by the Company in connection with the negotiation, execution, and performance of this Agreement and the consummation of the transactions contemplated hereby. Such payment shall be by wire transfer of immediately available funds to an account designated by the Company promptly after the Board of Directors of Parent has determined to recommend the Superior Proposal.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Agreement, including this Section 5.15.3(c), and subject to the rights of the Company with respect to Excluded Parties pursuant to Section 5.3(b), including the right to continue and maintain discussions and negotiations with, and provide information to, any Excluded Parties pursuant to Section 5.3(b), from the date hereof No-Shop Period Start Date until the earlier of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Company Requisite Shareholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly, 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, Company or any of its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Company or any of its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made made, renewed or delivered to the Company a bona fide an Acquisition Proposal after the date hereof of this Agreement that did not result from any material breach of Section 5.1(a5.3(b), and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (other than any breach that is immaterial in scope each case, if requested by such Person) if, and effect); provided, however, that, prior to taking any such actionsonly if, the Company Board (or a committee thereof) has shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is would reasonably likely be expected to lead to a Superior Proposal, Proposal and 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 the actions such action contemplated by this Section 5.1(b5.3(c) would reasonably be inconsistent with expected to cause the Company Board to violate its fiduciary duties under applicable LawLaws; and provided further that the Company will promptly (and and, in any event event, within 24 hours) make available to the Parent and its Representatives any non-public information concerning the Company, Company and its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided to such Third PersonParent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1, from the date hereof No-Shop Period Start Date until the Company’s receipt of the Company Shareholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any information (including non-public information information) relating to the Company, its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other information (including non-public information), or to any Personnelpersonnel, of the Company, its Subsidiaries or Affiliates, in each case Affiliates pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal after the date hereof No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or assist such Third Person (and its Representatives) with such Acquisition Proposal (in each case, if requested by such Third Person), in each case with respect to an Acquisition Proposal that did not result from any material breach of Section 5.1(a5.1(b); provided, that the Company and its Representatives may contact any Third Person with respect to an Acquisition Proposal (with a request that any response from such Third Person is in writing) to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (other than without the Company Board being required to make the determination in the following proviso at the time of seeking such clarification), it being agreed that if the Company Board receives any breach that is immaterial in scope and effect)clarifications from such Third Person, the Notice Period will not be deemed commenced until such clarifications are provided to Parent; provided, however, that, prior to taking any such actions, except as permitted by the immediately preceding proviso 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 is reasonably likely to lead to a Superior Proposal, and 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 the actions contemplated by this Section 5.1(b5.1(c) would be inconsistent with its fiduciary duties under pursuant to applicable Law; and provided further that the Company will promptly (and in any event within 24 hours) make available to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 hours after) the time it is provided to such Third Person.

Superior Proposals. Notwithstanding anything to the contrary set forth (a) Except as expressly provided in this Section 5.1Article 6 and for the Parent Legacy Business Disposition, from the date hereof until the Company’s receipt of the Company Shareholder Approval, the Company Parent, and the Company Board (or a committee thereof) maytheir respective Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or through one other adviser) or more other agent of the Company or the Parent or of any of their Subsidiaries (collectively “Representatives”), participate or engage in discussions otherwise, and shall not permit any such Person to: (i) solicit, assist, initiate, encourage or negotiations withotherwise knowingly facilitate (including by way of furnishing or providing copies of, furnish any non-public information relating to the Company, its Subsidiaries or Affiliates access to, or afford access to the businessdisclosure of, any confidential information, properties, assetsfacilities, books, books or records or other non-public information, or to any Personnel, of the Company, its the Parent or any of their Subsidiaries or Affiliatesentering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company or the Parent; (ii) enter into or otherwise engage or participate in each case pursuant any discussions or negotiations with any Person (other than the Parties) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company or the Parent; (iii) make a Company Change in Recommendation or Parent Change in Recommendation; (iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal for the Company or the Parent; or (v) accept or enter into or publicly propose to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal for the Company or the Parent. (b) The Company and Parent shall, and shall cause their Subsidiaries and Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Parties) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal for the Company or the Parent, and in connection therewith the Company and the Parent shall: (i) immediately discontinue access to and subject disclosure of all information, including any data room, and any confidential information, properties, facilities, books and records of the Company, the Parent, or any of their respective Subsidiaries; and (ii) promptly request, and exercise all rights either has to require: (A) the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive return or destruction of all copies of any confidential information regarding the Company, the Parent, or any of their respective Subsidiaries provided to any Person other than the Parties, and (B) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company, the Parent, or any of their respective Subsidiaries, using their commercially reasonable efforts to ensure that such requests are fully complied with in any material respect than accordance with the terms of such rights or entitlements. Except as expressly provided in this Article 6 and for the Confidentiality AgreementParent Legacy Business Disposition, if the Company, the Parent, or any of their respective Subsidiaries accepts a Superior Proposal, the Company shall be required to repay the entire outstanding principal balance of the Bridge Loan Financing plus all accrued and unpaid interest thereon and any other sums payable to the Noteholder directly in connection with the Bridge Loan Financing immediately upon acceptance of a Superior Proposal. (c) The Company and the Parent represent and warrant that, since January 1, 2019, neither the Company nor the Parent has waived any confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which the Company, the Parent, or any of their respective Subsidiaries is a party, and further covenant and agree that (A) the Company and the Parent shall take all necessary action to enforce each confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which they or any of their respective Subsidiaries is a party, and (B) neither the Company, the Parent, nor any of their respective Subsidiaries, nor any of their respective Representatives have or will, without the prior written consent of the Parties (which may be withheld or delayed in the Parties’ sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, the Parent, or any of their respective Subsidiaries under any confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which the Company, the Parent, or any of their respective Subsidiaries is a party (it being acknowledged by the Parties that the automatic termination or release of any standstill restrictions of any such agreement as the result of entering into of this Agreement will not constitute a breach of this Section 6.1(c)). (d) Notwithstanding the foregoing, if Parent receives a written Acquisition Proposal from a third party and the receipt of such Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or knowingly induced by Parent or its subsidiaries, then the Parent may (i) contact the person who has made such Acquisition Proposal in order to clarify the terms of such Acquisition Proposal so that the Parent Board (or any committee thereof) may inform itself about such Acquisition Proposal, (ii) furnish information concerning its business, properties or assets to any Third Person or its Representatives that has made or delivered person pursuant to a confidentiality agreement with terms that, taken as a whole, are not materially less favorable to the Company than those contained in the Confidentiality Agreement and (iii) negotiate and participate in discussions and negotiations with such person concerning a bona fide Acquisition Proposal after Proposal, in the date hereof that did not result from any breach case of Section 5.1(aclauses (ii) and (other than any breach that is immaterial in scope and effectiii); provided, however, that, prior to taking any such actions, if the Company Parent Board (or a committee thereof) has determined determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to constitute or lead to a Superior Proposal. Parent (A) shall promptly (and in any case within twenty-four (24) hours) provide the Company notice (1) of the receipt of any Acquisition Proposal, which notice shall include a complete, unredacted copy of such Acquisition Proposal, and (2) of any inquiries, proposals or offers received by, any requests for non-public information from, or any discussions or negotiations sought to be initiated or continued with, the Parent or any Representatives of the Parent concerning an Acquisition Proposal that constitutes or is reasonably likely to constitute or lead to an Acquisition Proposal, and disclose the identity of the other party (or parties) and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of such materials, (B) shall promptly (and in any case within twenty-four (24) hours) make available to the Company copies of all written materials provided by the Parent to such party but not previously made available to the Company and (C) shall keep the Company informed on a reasonably prompt basis (and, in any case, within twenty-four (24) hours of any significant development) of the status and material details (including amendments and proposed amendments) of any such Acquisition Proposal or other inquiry, offer, proposal or request. (e) If the Parent Board (or a committee thereof) has determined receives an Acquisition Proposal that the Parent Board determines in good faith constitutes a Superior Proposal, the Parent Board may effect a Parent Change in Recommendation and authorize the Parent to terminate this Agreement pursuant to Section 9.2(a)(iv)(A) in order to enter into a definitive agreement providing for a Superior Proposal if (after consultation with its financial advisor and outside legal counseli) the Parent Board determines in good faith that the failure to take the actions contemplated by this Section 5.1(b) would such action could reasonably be expected to be inconsistent with its the Parent’s directors’ fiduciary duties under applicable Law; and provided further that (ii) the Parent has notified the Company will promptly in writing that it intends to effect a Parent Change in Recommendation or terminate this Agreement; (and in any event within 24 hoursiii) make available to if applicable, the Parent has provided the Company a copy of the proposed definitive agreements between the Parent and its the Person making such Superior Proposal; (iv) for a period of five (5) Business Days following the notice delivered pursuant to clause (ii) of this Section 6.1(e), the Parent shall have discussed and negotiated in good faith and made Representatives of the Parent available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate) with Representatives of the Company any non-public information concerning proposed modifications to the Companyterms and conditions of this Agreement so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Parent’s directors’ fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term or condition of any Superior Proposal shall require a new notice and a new four (4) Business Day negotiation period); and (v) no earlier than the end of such negotiation period, its Subsidiaries the Parent Board shall have determined in good faith, after considering the terms of any proposed amendment or Affiliates modification to this Agreement, that (x) the Acquisition Proposal that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently subject of the notice described in clause (but in no event later than 24 hours afterii) above still constitutes a Superior Proposal and (y) the time it is provided failure to take such Third Personaction would still reasonably be expected to be inconsistent with the Parent’s directors’ fiduciary duties under applicable Law.

Superior Proposals. Notwithstanding anything (a) Prior to the contrary set forth Effective Date, NAN and its officers, directors, employees, advisors or other representatives or agents may enter into, or participate in, discussions or negotiations with a person who seeks to initiate such discussions or negotiations and, subject to the entering into by such person of a confidentiality agreement on terms no less favourable to NXX and no more favourable to the other person than the Confidentiality Agreement, may furnish to such person information concerning it and its business, properties and assets, in this each case if, and only to the extent that: (i) such person has first made a bona fide Acquisition Proposal in writing that was not solicited by NAN or its representatives in violation of Section 5.16.2 in any material respect, from which the NAN Board determines in good faith, after consultation with its financial advisors and legal counsel, would, if consummated in accordance with its terms, be reasonably likely to result in a Superior Proposal; (ii) the NAN Board, after receiving the advice of outside legal counsel, has determined in good faith that the failure to take such action would be inconsistent with its fiduciary duties; and (iii) it has provided to PNR the information required to be provided under Section 8.1(b) in respect of such Acquisition Proposal and has promptly notified PNR in writing of the determinations in Sections 8.1(a)(i) and 8.1(a)(ii) above. (b) NAN shall promptly (and, in any event, within two calendar days) notify PNR, at first verbally and then in writing, of any Acquisition Proposal received after the date hereof, or any confidentiality agreement entered into in respect of any such Acquisition Proposal and any enquiry or contact received after the date hereof until the Company’s receipt of the Company Shareholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectlythat could reasonably be expected to lead to an Acquisition Proposal, or through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any request for non-public information relating to it received after the Companydate hereof or for access to its properties, its Subsidiaries books or Affiliates torecords by any person that informs NAN that such person is considering making, or afford access to the businesshas made, properties, assets, books, records or other non-public information, or to any Personnel, of the Company, its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the Confidentiality Agreement, to any Third Person or its Representatives that has made or delivered to the Company a bona fide an Acquisition Proposal after the date hereof that did not result from hereof; which notice will include any breach known terms and conditions of Section 5.1(asuch Acquisition Proposal (including any form of agreement proposed to be entered into) (other than and shall indicate such details, to the extent known, of the Acquisition Proposal, enquiry or contact as PNR may reasonably request, including the identity of the person making such proposal, enquiry or contact. NAN shall keep PNR informed of the status, including any breach that is immaterial in scope and effect); providedchange to the material terms, however, that, prior to taking of any such actionsAcquisition Proposal or enquiry. In addition, NAN shall provide PNR with a list of, or copies of, the Company information provided to any person in respect of which a confidentiality agreement is entered into in respect of any Acquisition Proposal pursuant to Section 8.1(a), and shall provide PNR with a copy of the confidentiality agreement entered into in accordance with Section 8.1(a) and with access to any information provided to any such person which has not already been provided to PNR. (c) In the event that NXX is in receipt of a Superior Proposal, it shall give PNR, verbally and in writing, at least five Business Days advance notice of any decision by the NAN Board (to accept, recommend, approve or enter into an agreement to implement a committee thereof) Superior Proposal, which notice shall confirm that the NAN Board 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 is reasonably likely to lead to a Superior Proposal, shall identify the person making the Superior Proposal and shall provide a true and complete copy thereof and any amendments thereto. During such five Business Day period, NXX agrees not to accept, approve or enter into any agreement to implement such Superior Proposal and shall not modify or change its recommendation in respect of the Company Board (or a committee thereof) has determined Amalgamation. In addition, during such five Business Day period, NAN shall, and shall cause its financial and legal advisors to, negotiate in good faith (after consultation with PNR and its financial advisor and legal advisors to make such adjustments in the terms and conditions of this Agreement as would enable NAN to proceed with the Amalgamation as amended rather than the Superior Proposal. In the event that PNR proposes to amend this Agreement to provide that the NAN Shareholders shall receive a value per share equal to, or having a value greater than, the value per share provided in the Superior Proposal and so advises the NAN Board prior to the expiry of such five Business Day period, the NAN Board shall not accept, recommend, approve or enter into any agreement to implement such Superior Proposal and shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, modify or change its recommendation in respect of the Amalgamation. If the NAN Board continues to believe that such Superior Proposal remains a Superior Proposal and therefore rejects PNR's amended proposal, NAN may terminate this Agreement, provided however, that NAN must pay to PNR the Non-Completion Fee in accordance with Section 5.1(f) and Section 8.2. (d) NAN also acknowledges and agrees that each successive modification of any Acquisition Proposal shall constitute a new Acquisition Proposal for purposes of the requirement under Subsection 8.1(c) to initiate an additional five Business Day notice period. (e) PNR agrees that all information that may be provided to it by NXX with respect to any Acquisition Proposal pursuant to this Section 8.1 shall be treated as if it were "Confidential Information" as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings. (f) If required by PNR, NAN shall, subsequent to the five Business Day notice period contemplated by Section 8.1(c), reaffirm its recommendation of the Amalgamation by news release promptly, and in any event, within two Business Days of being requested to do so by PNR, in the event that: (i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or (ii) the Parties have entered into an amended agreement pursuant to Section 8.1(c) which results in any publicly announced Acquisition Proposal not being a Superior Proposal. (g) NAN shall ensure that its officers and directors and any brokers, investment bankers, advisors, agents or other representatives retained by it are aware of the provisions of this Section 8.1. NXX shall be responsible for any breach of this Section 8.1 by its officers, directors, brokers, investment bankers, advisors, agents or representatives. (h) For greater certainty, nothing in this Agreement shall prohibit the NAN Board from: (i) making any disclosure of an Acquisition Proposal to the NAN Shareholders prior to the Effective Time if, in the good faith judgment of the NAN Board after receiving the advice of outside legal counsel) that , such disclosure is necessary for the failure NAN Board to take the actions contemplated by this Section 5.1(b) would be inconsistent act in a manner consistent with its fiduciary duties or is otherwise required under applicable Law; and provided further that the Company will promptly law; (and in ii) taking any event within 24 hours) make available other action with regard to an Acquisition Proposal to the Parent extent ordered or otherwise mandated by any court of competent jurisdiction; and (iii) responding to a bona fide request for information that could reasonably be expected to lead to an Acquisition Proposal solely by advising that no information can be provided unless a bona fide written Acquisition Proposal is made and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives that was not previously made available to the Parent prior to or substantially concurrently (but then only in no event later than 24 hours after) the time it is provided to such Third Personcompliance with Section 8.1(a).

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.15.3, from the date hereof until the Company’s receipt of the Company Shareholder Stockholder Approval, the Company and its Subsidiaries and the Company Board (or a committee thereof) may, directly or indirectly, or through one or more of their Representatives, (i) contact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party to clarify any ambiguous terms and conditions thereof that are necessary to determine whether the Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board being required to make the determination in the following clause (ii)(y)), and (ii) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company, Company or its Subsidiaries or Affiliates to, or afford access to the business, properties, assets, books, records or other non-public information, or to any Personnelpersonnel, of the Company, Company or its Subsidiaries or Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any material respect than the terms of the an Acceptable Confidentiality Agreement, Agreement to any Third Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal after 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 (x) with respect to an Acquisition Proposal that was not the date hereof that did not result from of any material breach of Section 5.1(a5.3(a) and (other than any breach that is immaterial in scope and effect); provided, however, that, prior to taking any such actions, y) 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 is would be reasonably likely to lead to a Superior Proposal; provided, and 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 the actions contemplated by this Section 5.1(b) would be inconsistent with its fiduciary duties under applicable Law; and provided further however, that the Company will promptly (and in any event within 24 hours) make available provide to the Parent and its Representatives any non-public information concerning the Company, its Subsidiaries or Affiliates that is provided to any such Third Person or its Representatives given such access that was not previously made available to the Parent prior to or substantially concurrently (but in no event later than 24 twenty-four (24) hours after) the time it is provided to such Third Person.