Common use of Superior Proposals Clause in Contracts

Superior Proposals. At any time prior to the Company Stockholders Meeting, if the Company receives a bona fide Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any material breach of this Section 5.02, that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At Notwithstanding anything to the contrary set forth in this Section 5.4, 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 (including the Advisor), participate or engage in discussions or negotiations with, furnish any time prior non-public information relating to the Company Stockholders MeetingGroup to, if or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company receives Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide Acquisition Proposal, and 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 is was not withdrawn, which Acquisition Proposal did not the result from of any material breach of this Section 5.025.4(b); provided that, the Company and its Representatives may contact any Third Person in writing (with a request that any response from such Third Person is in writing) with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal (without the Company Board determines being required to make the determination in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposalthe following proviso), it being agreed that if the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize receives any clarifications from such Third Person, the Company Proposal Notice Period will not be deemed commenced until such clarifications are provided to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition AgreementParent; provided, however, that the Company Board may only take the actions described in (xor a committee thereof) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, faith (after consultation with its financial advisor and outside legal counsel, ) that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Acquisition Proposal either constitutes a Superior Proposal and shall include or would reasonably likely lead to a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent Board (or a committee thereof) has determined in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) advisor and outside legal counsel, ) that such Acquisition Proposal would continue to constitute a Superior Proposal, and that the failure to take such action the actions contemplated by this Section 5.4(c) would continue reasonably be expected to be inconsistent with the directors’ its fiduciary duties under Applicable pursuant to applicable Law; and provided further, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice will provide to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking and its Representatives any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect non-public information that is provided to any Person or its Representatives given such modified Superior Proposal. Notwithstanding access that was not previously made available to Parent prior to or substantially concurrently (but in no event later than forty-eight (48) hours after) the foregoing, after compliance with the foregoing clause (B) and (C) with respect time it is provided to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any such Person.

Superior Proposals. At (a) Coretec or the directors thereof may take any time prior to the Company Stockholders Meetingaction that is prohibited by Sections 15(iii), (iv), (v) or (vi) in respect of any Acquisition Proposal only if: (i) such Acquisition Proposal constitutes, or would constitute, if the Company receives consummated in accordance with its terms, a bona fide Superior Proposal; (ii) such Acquisition Proposal is in writing and DDi has been provided with a copy of the document containing such Superior Proposal; (iii) five Business Days have elapsed from the date on which DDi received written notice of the determination of Coretec or the directors thereof to accept, approve or recommend or to enter into an agreement in respect of such Superior Proposal; (iv) in the event that is not withdrawnDDi has proposed to amend this Agreement during the five Business Day period referred to above, which Acquisition Proposal did not result from any material breach the Coretec board of this Section 5.02, that the Company Board determines in good faith directors (after consultation with receiving advice from its financial advisor(sadvisors (if any) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faithfaith that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (v) Coretec’s board of directors, after consultation with its financial advisor and outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with the directors’ its fiduciary duties under Applicable Law;all applicable Laws; and (2vi) Coretec terminates this Agreement pursuant to Section 18 hereof and Coretec concurrently makes the Company payment contemplated by, and in accordance with, Section 17 hereof. (b) Coretec acknowledges that each successive modification to any Acquisition Proposal shall constitute a new Acquisition Proposal for purposes of the requirement under Section 16(a)(iii) hereof and shall initiate a new three Business Day period. (c) If the Coretec Proxy Circular has been sent to Coretec Shareholders prior to the expiry of the five Business Day period set forth in Section 16(a)(iii) and, during such period, DDi requests in writing that the Coretec Meeting proceed, unless otherwise ordered by the Court, Coretec shall take all reasonable steps necessary to hold the Coretec Meeting and to cause the Arrangement Resolution to be voted on at the Coretec Meeting. (d) If Coretec has provided prior written DDi with a notice to Parent of under Section 16(a), the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Acquisition Proposal and shall include a copy of the relevant proposed transaction agreement withhas been publicly disclosed or announced, and the identity ofAcquisition Proposal is provided to DDi within 10 days of the scheduled Coretec Meeting, then, subject to applicable Laws, at DDi’s request, Coretec will postpone or adjourn the Person making Coretec Meeting at the Superior ProposalCoretec Meeting (but not beforehand without DDi’s consent) to a date acceptable to DDi, acting reasonably, which shall not be later than ten days after the scheduled date of the Coretec Meeting and copies of any other written materials to the extent such materials contain any financial termsshall, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the event that DDi and Coretec amend the terms and conditions of this Agreement as would permit contemplated by Section 16(a)(iv), ensure that the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day details of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant amended Agreement are communicated to the Coretec Shareholders prior sentence), to the Company shall have no further obligation in resumption of the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Personadjourned Coretec Meeting.

Superior Proposals. At The Company Board of Directors shall furnish to Parent all information provided to any time prior third party pursuant to this Section 5.7 to the Company Stockholders Meetingextent that such information has not been previously provided to Parent. Notwithstanding the foregoing, if the Company Board of Directors receives a bona fide an Acquisition Proposal that is not withdrawnwhich it determines in good faith to be superior to the Merger (after consultation with its financial advisors and legal counsel), which taking into account the Person making the Acquisition Proposal did not result from any material breach and the likelihood and timing of this Section 5.02consummation (including financial, that legal, regulatory and other aspects of the Acquisition Proposal deemed relevant by the Company Board of Directors in good faith) (such other Acquisition Proposal, a "Superior Proposal"), the Company Board of Directors may withdraw or modify the Company Recommendation, approve or recommend the Superior Proposal, enter into an agreement with respect to such Superior Proposal (either of which shall be deemed, for purposes of Section 7.2 hereof, a withdrawal of the Company Recommendation) or terminate this Agreement in accordance with Section 7.1(f); provided, that, at least three Business Days prior to taking any such action, the Company gives written notice thereof to Parent, setting forth in reasonable detail, the material terms and conditions of such Superior Proposal, and Parent shall not have, within such three Business Day period, proposed an improved transaction to the Company's Board of Directors which the Company's Board of Directors determines in good faith (after consultation with its financial advisor(s) advisors and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify as favorable to the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making Stockholders as the Superior Proposal, ) (it being understood and copies of agreed that any amendment to the financial terms or any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to material term of such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company Proposal shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a require new written notice to Parent of such modified Superior Proposal pursuant and an additional two Business Day period to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with enable Parent to consider proposing an improved transaction). As soon as reasonably practicable after the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence)date hereof, the Company shall have no further obligation in request that third parties promptly return or destroy all confidential information relating to the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect Company or any of its Subsidiaries furnished to any Superior Proposal such third parties by Thomas Wiesel Partners or modification to a Superior Proposal made obtained by any Personsuch third parties during the xxxxxxx xxxxblished by Thomas Wiesel Partners.

Superior Proposals. At Notwithstanding anything herein to the contrary, at any time prior to obtaining the Company Stockholders MeetingRequisite Vote, if the Company receives a bona fide Board may in response to its receipt of an Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any a material breach of this Section 5.02, that 6.6 (x) make a Change of Recommendation (other than the Company Board determines actions described in good faith clause (after consultation with its financial advisor(sD) and outside legal counselof the definition of Change of Recommendation) constitutes a Superior Proposal, the Company Board may or (iy) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d8.1(d)(ii) to enter into an Alternative a definitive written agreement providing for such Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) Proposal if: (1i) the Company Board shall have has determined in good faith, after consultation with its the Company’s financial advisor advisors and outside legal counselcounsel that (A) such Acquisition Proposal would, that if consummated, result in a Superior Proposal and (B) the failure to take make such action Change of Recommendation or terminate this Agreement pursuant to Section 8.1(d)(ii) to enter into a definitive written agreement providing for such Acquisition Proposal, as the case may be, would reasonably be likely to be inconsistent with the directors’ its fiduciary duties under Applicable Lawapplicable Law (provided that the actions of the Company Board in making such determination and such determination shall not in themselves constitute a Change of Recommendation or a termination of this Agreement); (2ii) the Company has provided prior delivers to Parent a written notice to Parent of the (a “Company Board’s intention to take such action Notice”) at least three four (34) Business Days in advance advising Parent of taking such actiondetermination under Section 6.6(d)(i), which notice Company Notice shall specify the identity of the party making a Superior Proposal and the material terms and conditions thereof and include an unredacted copy of the Superior Proposal and shall include a copy of the relevant any proposed transaction agreement withdraft Alternative Acquisition Agreement for such Superior Proposal and any related documents, and the identity ofincluding financing documents, the Person making the Superior Proposal, and copies of any other written materials to the extent provided by the relevant party in connection with the Superior Proposal (provided that the giving of a Company Notice and actions of the Company Board in authorizing and disclosing (to the extent legally required) such materials contain any financial terms, conditions notice shall not in themselves constitute a Change of Recommendation or other terms relating to such Superior Proposal;a termination of this Agreement); and (3iii) at or after providing 11:59 p.m. San Jose, California time, on the fourth Business Day immediately following the date the Company Notice is delivered to Parent (such notice and prior to taking any such actionperiod of time, the “Notice Period”), the Company shall haveBoard again makes a determination described under Section 6.6(d)(i) after (A) if requested by Parent, and shall have caused the Company made its Representatives to, negotiate reasonably available during the Notice Period for the purpose of engaging in discussions and negotiations with Parent in good faith and its Representatives (to the extent Parent desires to negotiate) during such three (3) Business Day period regarding a possible amendment to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and and (4B) the Company Board shall have considered taking into account in good faith any changes written proposals made by Parent during the Notice Period, if any, that if accepted by the Company would become binding on Parent; provided that if, following the date the Company Notice is delivered but prior to the Company Board making a Change of Recommendation or terminating this Agreement pursuant to Section 8.1(d)(ii), the financial or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on material terms of the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such relevant Acquisition Proposal would continue to constitute a Superior Proposalare materially amended or modified, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, then the Company shall be required will deliver to deliver Parent a new written notice to Parent of such modified Superior Proposal Company Notice pursuant to clause (B) Section 6.6(d)(ii), except that the Notice Period with respect to such new Company Notice for the purposes of this Section 5.02(e6.6(d)(iii) shall instead end at least two 11:59 p.m. San Jose, California time, on the second Business Day immediately following the date such new Company Notice is delivered to Parent (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with but no such new Company Notice will shorten the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentenceinitial Notice Period), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At any time prior to the Company Stockholders Meetingconsummation of the Offer subject to the Company’s compliance with the provisions of the next paragraph, if (A) the Company receives Board may make a Change in Recommendation or (B) the Company may terminate the Merger Agreement in accordance with the applicable provision thereof in order to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal, if, in response to a bona fide written Acquisition Proposal made after the date of the Merger Agreement and not withdrawn that is not withdrawn, which Acquisition Proposal did not result from any material a breach of this Section 5.02the non-solicitation or unsolicited proposal provisions of the Merger Acquisition, that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counselcounsel and financial advisors) that (i) such Acquisition Proposal constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or Proposal and (ii) authorize the failure to take the action set forth in clause (A) or (B), as applicable, would reasonably be expected to be inconsistent with its fiduciary obligations under applicable law. The Company will not be entitled to make such a Change in Recommendation or terminate the Merger Agreement in connection with a Superior Proposal as described in the immediately preceding paragraph unless: • the Company has provided Parent four (4) business days’ prior written notice (which we refer to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; providedas the “Superior Proposal Notice”), however, advising Parent that the Company Board may only intends to take such action (and specifying, in reasonable detail, the actions described reasons for such action and the material terms and conditions of any such Superior Proposal), and providing Parent with a copy of the Alternative Acquisition Agreement (and any other documents containing the terms of the Superior Proposal) in the form to be entered into; • during such four (x4) clause (ii) business day period, if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined requested by Parent in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice and its representatives have engaged in good faith negotiations with Parent regarding changes to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Merger Agreement and any other proposals made by Parent intended by Parent to cause such Acquisition Proposal and shall include to no longer constitute a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, ; and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit • the Company Board not to take such action; and (4) the Company Board shall have has considered in good faith any changes and all adjustments to this the Merger Agreement or (including a change to the price terms thereof) and any other arrangements agreements that may be offered proposed in writing by Parent by 5:00 PM Eastern Standard Time no later than 11:59 p.m., New York City time, on the third fourth (3rd4th) Business Day business day of such three four (34) Business Day business day period and shall have has determined in good faith, faith (after consultation with its financial advisor(s) and outside legal counsel, counsel and financial advisors) that such the Acquisition Proposal would continue to constitute a Superior ProposalProposal if such proposed changed terms were to be given effect, and that the failure to take such action make the Change in Recommendation or terminate the Merger Agreement would continue reasonably be expected to be inconsistent with the directors’ Company Board’s fiduciary duties obligations under Applicable Law, if such changes offered in writing by Parent were given effectapplicable law. In Any material revisions to the event that terms of a Superior Proposal is modified by the Person making such proposal, or material revisions to an Acquisition Proposal that the Company shall be required Board had determined no longer constitutes a Superior Proposal, will constitute a new Acquisition Proposal and will in each case require the Company to deliver to Parent a new written notice to Parent of such modified Superior Proposal pursuant Notice, except that the references to clause four (B4) of this Section 5.02(ebusiness days will be deemed to be three (3) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Personbusiness days.

Superior Proposals. At Notwithstanding ‎Section 5.02(e) or any time other provision of this Agreement to the contrary, prior to obtaining the Company Stockholders MeetingStockholder Approval, if but not after, the Board of Directors of the Company receives or any duly authorized committee thereof may, in response to a bona fide Acquisition written Takeover Proposal that is not withdrawn, which Acquisition Proposal did not result from any a material breach of this Section ‎Section 5.02, that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company make an Adverse Recommendation Change and/or or (ii) authorize cause the Company to terminate this Agreement pursuant to Section 8.01(din accordance with ‎Section 7.01(d)(ii) to enter into an Alternative a Company Acquisition Agreement; providedAgreement with respect to such Takeover Proposal, howeverin each case, that if and only if, (A) the Board of Directors of the Company Board may only take the actions described in (x) clause (ii) if the Company or any duly authorized committee thereof has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, after consultation with its financial advisor advisors and outside legal counsel, that (1) such Takeover Proposal is a Superior Proposal and (2) the failure to take such action would be inconsistent with the directors’ its fiduciary duties under Applicable Law; applicable Law and (B)(1) the Company has given Parent at least four (4) Business Days’ prior written notice (the “Superior Proposal Notice Period”) of its intention to take any such actions (which notice shall not, in and of itself, constitute an Adverse Recommendation Change), and which notice shall (x) specify the basis on which the Board of Directors of the Company or any duly authorized committee thereof intends to effect such Adverse Recommendation Change or proposed termination and (y) include the terms and conditions of such Takeover Proposal (including the consideration offered therein and the identity of the Person or group of Persons making the Takeover Proposal) and an unredacted copy of any written materials received from or on behalf of the Person or Persons making such Takeover Proposal (including a copy of any proposed Company Acquisition Agreements, proposed or committed financing documentation and any other related documents or written materials), (2) the Company has provided prior written negotiated with, and has caused its Representatives to negotiate with, Parent in good faith during the Superior Proposal Notice Period, to the extent Parent wishes to negotiate, in order to enable Parent to revise the terms of this Agreement so that such Takeover Proposal would cease to constitute a Superior Proposal and (3) at the end of the applicable Superior Proposal Notice Period, and after considering the results of such negotiations and giving effect to any proposals, amendment or modifications made or agreed to by Parent, if any, the Board of Directors of the Company or any duly authorized committee thereof (after consultation with its financial advisors and outside legal counsel) has determined that such Takeover Proposal continues to constitute a Superior Proposal and that the failure of the Board of Directors of the Company or any duly authorized committee thereof to take such actions would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any change, modification or amendment to the financial or other material terms of a Takeover Proposal that was previously the subject of a notice hereunder shall require a new notice to Parent of as provided above, but, with respect to any such subsequent notices, the Company Board’s intention Superior Proposal Notice Period shall be deemed to take such action at least be three (3) Business Days in advance of taking rather than four (4) Business Days; provided that such action, which new notice shall specify in no event shorten the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; original four (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (34) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentenceperiod), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At any time Notwithstanding anything to the contrary contained in Section 5.1(a), in the event that Company receives prior to the adoption of this Agreement by the Company Stockholders Meetingpursuant to the terms hereof an unsolicited, if the Company receives a bona fide written Acquisition Proposal from a third party that is not withdrawn, which Acquisition Proposal did not result from any material a breach of this Section 5.02, 5.1 and that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have reasonably determined in good faith, after consultation with its outside financial advisor advisors and outside legal counsel, that failure such Acquisition Proposal is, or is reasonably likely to take lead to, a Superior Proposal (as defined in Section 5.1(g)(ii)), Company may then (1) furnish confidential or nonpublic information to the third party (and its representatives) making such action would be inconsistent Acquisition Proposal and (2) engage in discussions and negotiations (including exchanging draft agreements) with the directors’ fiduciary duties under Applicable Lawthird party and its representatives with respect to such Acquisition Proposal; provided, however, that: (i) Company complies with all of the terms of this Section 5.1; (2ii) the Company has provided prior written notice to Parent shall have notified Parent, in writing, of any decision of the Company Board’s intention Board as to take such action at least three (3) Business Days in advance of taking such actionwhether to enter into discussions or negotiations concerning any Acquisition Proposal or to provide confidential or nonpublic information to any Person as permitted herein, which notice shall specify be given as promptly as practicable after such decision (and in any event no later than 24 hours after such determination was reached); (iii) Company promptly provides Parent with oral and written notice setting forth all such information as is reasonably necessary to keep Parent currently informed in all material respects of the negotiations, status and material terms (including material amendments or proposed material amendments and any withdrawals or rejections thereof) of the Superior any such Acquisition Proposal and shall include promptly provide Parent a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other all written materials subsequently provided to, by or on behalf of such Person or group in connection with such Acquisition Proposal; (iv) prior to furnishing any nonpublic information or entering into any negotiations or discussions with such third party, (1) Company receives from such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on Company’s behalf on terms no less restrictive to such third party than (i) the confidentiality agreement, dated as of December 5, 2006, between Parent and Company (the “Confidentiality Agreement”) and (ii) to the extent such materials contain third party is not currently conducting a similar dark fiber business, the confidentiality agreement, dated as of December 29, 2006, between Parent and Company specific to the dark fiber business of Company (the “Dark Fiber Confidentiality Agreement” and together with the Confidentiality Agreement, the “Confidentiality Agreements”), and (2) contemporaneously with furnishing any financial terms, conditions or other terms relating such nonpublic information to such Superior Proposal; (3) after providing third party, Company furnishes such notice and prior confidential or nonpublic information to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board information has not to take such actionbeen previously so furnished); and (4v) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined reasonably determines in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that the failure to take provide such action information or enter into such discussion or negotiations would continue reasonably be expected to be inconsistent with result in a breach of the directors’ Company Board’s fiduciary duties to Company and the Company Stockholders under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any PersonLaws.

Superior Proposals. At Neither IAMGOLD nor its directors shall, in respect of any time prior to the Company Stockholders MeetingAcquisition Proposal, if the Company receives a bona fide accept, approve or recommend or enter into any agreement in respect of such Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any material breach unless: (a) the directors of this Section 5.02, that the Company Board determines IAMGOLD have determined in good faith (after consultation with its financial advisor(s) and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; (b) Gold Fields has been provided with a copy of the document containing such Superior Proposal (with such deletions as are necessary to protect any confidential portions of such document, provided that the Company Board material terms and conditions of, and the identity of the person making, such Superior Proposal may not be deleted); (ic) effect a Company Adverse Recommendation Change and/or (ii) authorize five business days have elapsed from the Company later of the date on which Gold Fields received notice of the determination of IAMGOLD to terminate this Agreement pursuant to Section 8.01(d) accept, approve or recommend or to enter into an Alternative Acquisition Agreement; providedagreement in respect of such Superior Proposal and the date Gold Fields received a copy of the Superior Proposal, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (yA) clauses Gold Fields has not, within such five business day period, made an offer in writing to amend this Agreement to at least match the Superior Proposal (ia “Matching Offer") or (iiB) if: Gold Fields has made a Matching Offer and the directors of IAMGOLD determine (1which determination need not be made within such five day period) the Company Board shall have determined in good faith, after consultation with and receiving advice from, as appropriate, their respective financial, legal and other advisors, that such Matching Offer would not, if consummated in accordance with its terms, result in a transaction: (i) which is equivalent or superior, from a financial point of view, to IAMGOLD to the Superior Proposal (and IAMGOLD shall have received a written opinion from its financial advisor and outside legal counseladvisers substantially to such effect); or (ii) the acceptance of which by IAMGOLD, that failure having regard to take such action all of the then prevailing circumstances, would be inconsistent with more likely to result in the directors’ performance by the directors of IAMGOLD of their fiduciary duties obligations under Applicable Lawapplicable Laws; (2d) the Company IAMGOLD terminates this Agreement pursuant to subsection 17(a) if Gold Fields has provided prior written notice elected not to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of match the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3if an offer made by Gold Fields under subsection 15(c) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board is not to take such actionaccepted by IAMGOLD; and (4e) IAMGOLD makes the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposalpayment contemplated by, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Lawin accordance with, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Personsection 16.

Superior Proposals. At Notwithstanding anything to contrary in this Section 5.3, from the No-Shop Period Start Date until the Acceptance Time, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Company Financial Advisor), following the execution of an Acceptable Confidentiality Agreement, (i) participate or engage in discussions or negotiations with; (ii) furnish any time prior non-public information relating to the Company Stockholders Meetingto; (iii) afford access to the business, if properties, assets, books, records or other non-public information, or to any personnel, of the Company receives to; or (iv) otherwise facilitate the making of a bona fide Superior Proposal by, in each case, any Person or its Representatives that has made or delivered to the Company a written Acquisition Proposal after the No-Shop Period Start Date that is was not withdrawn, which Acquisition Proposal did not result from any solicited in material breach of this Section 5.025.3, that but only if the Company Board determines (or a committee thereof) has determined in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, ) that (A) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal; and (B) the failure to take such action the actions contemplated by this Section 5.3(c) would be inconsistent with the directors’ fiduciary duties under Applicable pursuant to applicable Law; (2) . In connection with the foregoing, the Company has will substantially contemporaneously (and in any event within twenty-four (24) hours) provide to Parent, or provide Parent and its Representatives access to, any non-public information concerning the Company that is provided prior written notice to Parent any such Person or its Representatives that was not previously made available to Parent. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company Board’s intention may continue to take such action at least three (3engage in the activities described in Section 5.3(a) Business Days in advance of taking such actionwith respect to any Excluded Party, which notice shall specify including with respect to any amended proposal or offer submitted by an Excluded Party following the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement withNo-Shop Period Start Date, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; restrictions in Section 5.3(b) will not apply with respect thereto if (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4x) the Company Board shall have considered requirements set forth in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third clauses (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(sA) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e5.3(d) at least two (2) Business Days in advance have been satisfied as of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) No-Shop Period Start date and (Cy) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in has notified Parent of its intent to continue such negotiations, which notice will contain the future to comply with the notification and negotiation obligations set forth in this information required by Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person5.3(g).

Superior Proposals. At any time prior Notwithstanding anything to the Company Stockholders Meeting, if the Company receives a bona fide Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any material breach of contrary contained in this Section 5.02, in the event that (i) the Company receives an unsolicited written bona fide Takeover Proposal on or before the thirtieth (30th) calendar day following the date hereof (the "Initial Proposal Deadline") and the Board determines of Directors (or a committee thereof) has in good faith concluded (based upon the advice of its financial advisor) that such Takeover Proposal is a Superior Proposal (as defined in Section 5.02(f)(ii)), and (ii) the Board of Directors (or a committee thereof) concludes in good faith, following consultation with its outside legal counsel and independent financial advisor that the failure to do any of the following would be reasonably likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law (without regard, if applicable, to the existence of the Principal Stockholders' Consent), then, (i) after providing written notice of its decision to take such action to the Parent (the "Company Notice") and (ii) on or before the fifth (5th) Business Day following the thirtieth (30th) calendar day following the last date on which a Person making a Takeover Proposal has made its first Takeover Proposal (which the Board of Directors (or a committee thereof) has in good faith concluded (following consultation with its financial advisor(sadvisor) and outside legal counsel) constitutes is, or could reasonably be expected to lead to, a Superior Proposal) which is received by the Company following the execution hereof and on or before the Initial Proposal Deadline (such date, the Company "Final Change Deadline"), it may: (A) request information from the person making such Takeover Proposal for the purpose of the Board may of Directors informing itself about the Takeover Proposal that has been made and the Person that made it; (iB) effect a Company Adverse Recommendation Change and/or (ii) authorize furnish information with respect to the Company to terminate this Agreement the person making such Takeover Proposal pursuant to Section 8.01(d) a customary confidentiality agreement the benefits of the terms are which no more favorable to enter into an Alternative Acquisition Agreementthe person making such Takeover Proposal than the Confidentiality Agreement in any material respect; provided, however, provided that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board such confidentiality agreement shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice not prohibit disclosure to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit such Takeover Proposal, including the Company Board not to take identity of the Person making such actionTakeover Proposal and any material changes thereto; and (4C) the Company Board shall have considered engage in good faith any changes to this Agreement discussions or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation negotiations with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of Takeover Proposal regarding such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Takeover Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At (a) Bema or the directors thereof may take any time prior to the Company Stockholders Meetingaction that is prohibited by subsections 7.1(a) (iii), if the Company receives a bona fide (iv), (v) or (vi) in respect of any Acquisition Proposal that is not withdrawn, which only if: (i) such Acquisition Proposal did not result constitutes a Superior Proposal; (ii) such Acquisition Proposal is in writing and Kinross has been provided with a copy of the document containing such Superior Proposal; (iii) five Business Days have elapsed from any material breach the date on which Kinross received written notice of the determination of Bema or the directors thereof to accept, approve or recommend or to enter into an agreement in respect of such Superior Proposal; (iv) in the event that Kinross has proposed to amend this Section 5.02Agreement during the five Business Day period referred to above, that the Company Board determines in good faith Bema board of directors (after consultation with receiving advice from its financial advisor(s) advisors and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faithfaith that the Acquisition Proposal continues to constitute a Superior Proposal after taking into account such amendments; (v) Bema’s board of directors, after consultation with its financial advisor and outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with the directors’ its fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such actionall applicable Laws; and (4vi) the Company Board shall have considered in good faith any changes to Bema has terminated this Agreement or other arrangements pursuant to subsection 8.1(a) hereof and Bema has made the payment contemplated by, and in accordance with, subsection 7.3(a) hereof. (b) Bema acknowledges that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on each successive modification to any Acquisition Proposal shall constitute a new Acquisition Proposal for purposes of the third (3rdrequirement under subsection 7.2(a)(iii) hereof and shall initiate a new five Business Day period. (c) If the Bema Proxy Circular has been sent to Bema Shareholders prior to the expiry of such three (3) the five Business Day period and shall have determined set forth in good faithsubsection 7.2(a)(iii) and, after consultation with its financial advisor(s) and outside legal counselduring such period, Kinross requests in writing that such Acquisition Proposal would the Bema Meeting proceed, unless otherwise ordered by the Court, Bema may continue to constitute a Superior Proposal, take all reasonable steps necessary to hold the Bema Meeting and that failure to take such action would continue cause the Arrangement to be inconsistent with voted on at the directorsBema Meeting, or postpone or adjourn the Bema Meeting at the Bema Meeting (but not beforehand without Kinross’ fiduciary duties under Applicable Lawconsent) to a date acceptable to Bema, if such changes offered acting reasonably, which shall not be later than twenty days after the scheduled date of the Bema Meeting and shall, in writing by Parent were given effect. In the event that a Superior Proposal is modified by Kinross and Bema amend the Person making such proposalterms of this Agreement pursuant to subsection 7.2(a)(iv), ensure that the Company shall be required to deliver a new written notice to Parent details of such modified Superior amended Agreement are communicated to the Bema Shareholders prior to the resumption of the adjourned Bema Meeting. (d) Where at any time before the Bema Meeting, Bema has provided Kinross with a notice under subsection 7.2(a)(ii), an Acquisition Proposal has been publicly disclosed or announced, and the five Business Day period under subsection 7.2(a)(iii) has not elapsed, then, subject to applicable Laws, at Kinross’ request, Bema will postpone or adjourn the Bema Meeting at the Bema Meeting (but not beforehand without Kinross’ consent) to a date acceptable to Kinross, acting reasonably, which shall not be later than twenty days after the scheduled date of the Bema Meeting and shall, in the event that Kinross and Bema amend the terms of this Agreement pursuant to clause (B) subsection 7.2(a)(iv), ensure that the details of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant amended Agreement are communicated to the Bema Shareholders prior sentence), to the Company shall have no further obligation in resumption of the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Personadjourned Bema Meeting.

Superior Proposals. At any time prior Notwithstanding anything to the Company Stockholders Meeting, if the Company receives a bona fide Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any material breach of contrary contained in this Section 5.02, in the event that (i) the Company receives an unsolicited written bona fide Takeover Proposal and the Board determines of Directors (or a committee thereof) has in good faith concluded that such Takeover Proposal is, or could reasonably be expected based on the written contents of such Takeover Proposal to lead to, a Superior Proposal (after as defined in Section 5.02(f)(ii)), and (ii) the Board of Directors (or a committee thereof) concludes in good faith following consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, counsel that the Company Board may only take failure to do any of the actions described in following would be likely to constitute a breach of its fiduciary duties to the Company's stockholders under applicable law, then, (x) clause after providing written notice of its decision to take such action to Parent (ii) if the "Company has paid the Termination Fee in compliance with Section 8.03(b)(iNotice") and (y) clauses on or before the fifth (i5th) Business Day following the date on which a person making a Takeover Proposal has made its first Takeover Proposal (which the Board of Directors (or (iia committee thereof) ifhas in good faith concluded is, or could reasonably be expected to lead to, a Superior Proposal) which is received by the Company following the execution hereof and on or before the Closing, it may: (1A) request information from the Company person making such Takeover Proposal for the purpose of the Board shall have determined in good faith, after consultation with its financial advisor of Directors informing itself about the Takeover Proposal that has been made and outside legal counsel, the person that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Lawmade it; (2B) furnish information with respect to the Company has to the person making such Takeover Proposal pursuant to a customary confidentiality agreement the benefits of the terms are which no more favorable to the person making such Takeover Proposal than the Confidentiality Agreement in any material respect; provided prior written notice that such confidentiality agreement shall not prohibit disclosure to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit such Takeover Proposal, including the Company Board not to take identity of the person making such actionTakeover Proposal and any material changes thereto; and (4C) the Company Board shall have considered engage in good faith any changes to this Agreement discussions or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent negotiations with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person person making such proposal, the Company shall be required to deliver a new written notice to Parent of Takeover Proposal regarding such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Takeover Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At (a) A Covenantor or its directors may, in respect of any time Acquisition Proposal received by them prior to the Company Stockholders Meetingapproval by its shareholders of the Amalgamation (or, with respect to FansUnite, if approval of shareholders is not required to effect the Company receives Amalgamation, prior to the approval by the Askott Shareholders of the Amalgamation), change their recommendation to its shareholders regarding the approval of the Amalgamation (a bona fide “Recommendation Change”) if prior to the Recommendation Change: (i) they have determined that such Acquisition Proposal that is not withdrawn, which Acquisition Proposal did not result from any material breach of this Section 5.02, that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, Proposal and advised the Company Board may (i) effect other parties hereto of that fact and their intention to make a Company Adverse Recommendation Change and/or Change; (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance other parties hereto have been provided with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement withdocument containing such Superior Proposal (with such deletions as are necessary to protect any confidential portions of such document, provided that material terms and conditions of, and the identity ofof the person making, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; Proposal may not be deleted); and (3iii) after providing such notice five (5) Business Days have elapsed from the later of the date on which the other parties hereto received the material required to be provided to it pursuant to (i) and prior (ii). Each Covenantor agrees that if the other party so elects, during the five (5) Business Days period referred to taking any such actionin (iii), the Company they and their financial and legal advisors shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in to the terms and conditions of this Agreement as would permit enable the Company Board Covenantor to not make its Recommendation Change, while allowing their respective boards of directors to take comply with their fiduciary duties under Applicable Law. During such action; and five (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd5) Business Day period, a Covenantor shall not enter into any agreement in respect of the Superior Proposal with the party making the Superior Proposal; provided, however, that such three Covenantor may, during that time, enter into or continue discussions with such party, but such discussions shall in no way affect the rights of FansUnite under this Agreement to require that Askott hold the Askott Meeting and, if the Askott Shareholders approve the Amalgamation and the other conditions for Askott’s benefit are satisfied or waived, proceed to complete the Amalgamation. (3b) Business Day period The board of directors of a Covenantor may communicate to its shareholders its Recommendation Change in such manner as it may elect, including the issuance of a press release and such other communication it determines necessary. The first public announcement or other communication to the shareholders of a Covenantor of the Recommendation Change is referred to as the “Change Date”. At any time following the Change Date, the other parties may elect, by notice in writing to the Covenantor, to terminate this Agreement pursuant to Section 9.3 hereof, and upon such party so doing, the Covenantor will be obliged to make payment of the Compensation Fee contemplated by, and in accordance with, Section 8.3 hereof; alternatively, notwithstanding any Recommendation Change, FansUnite may require Askott to hold the Askott Meeting, and if FansUnite takes no action, it shall be deemed to have not terminated this Agreement and Askott will proceed to hold the Askott Meeting. (c) As used in this Agreement, “Superior Proposal” means a bona fide unsolicited written Acquisition Proposal received after the date hereof that: (A) is not conditional on obtaining financing; (B) in respect of which the independent directors of the Covenantor have unanimously determined in good faith, after consultation with its financial advisor(swith, and receiving advice (which may include a written opinion) from, as appropriate, their financial, legal and outside legal counsel, other advisors that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Lawwould, if such changes offered consummated in writing by Parent were given effect. In accordance with its terms, result in a transaction which is more favourable from a financial point of view to the event that a Superior Proposal is modified holders of the Covenantor’s shares than the Transaction (taking into consideration any adjustment to the terms and conditions of the Transaction proposed by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of such modified Superior Proposal other parties pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence8.2), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At any time prior Notwithstanding anything to the Company Stockholders Meetingcontrary contained in Section 5.2(a), if in the event that (i) the Company receives a an unsolicited bona fide Acquisition Takeover Proposal that is not withdrawn, which Acquisition on or before the fifteenth (15th) calendar day following the date hereof (the “Initial Proposal did not result from any material breach Deadline”) and the Board of this Section 5.02, that the Company Board determines Directors (or a committee thereof) has in good faith concluded (after following consultation with its financial advisor(sadvisor) and outside legal counsel) constitutes that such Takeover Proposal is, or could reasonably be expected to lead to, a Superior ProposalProposal (as defined in Section 5.2(f)(ii)), the Company Board may (i) effect a Company Adverse Recommendation Change and/or and (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(dBoard of Directors (or a committee thereof) to enter into an Alternative Acquisition Agreement; provided, however, that the Company Board may only take the actions described in (x) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined concludes in good faith, after following consultation with its financial advisor and outside legal counsel, that the failure to take such action do any of the following would be inconsistent with the directors’ reasonably likely to constitute a breach of its fiduciary duties to the Company’s stockholders under Applicable Lawapplicable law (without regard, if applicable, to the existence of the Majority Stockholder Written Consent), then, on or before the fifth (5th) Business Day following the thirtieth (30th) calendar day following the last date on which a Person making a Takeover Proposal has made its first Takeover Proposal (which the Board of Directors (or a committee thereof) has in good faith concluded (following consultation with its financial advisor) is, or could reasonably be expected to lead to, a Superior Proposal) which is received by the Company following the execution hereof and on or before the Initial Proposal Deadline (such date, the “Final Change Deadline”), it may: (A) request information from the Person making such Takeover Proposal for the purpose of the Board of Directors informing itself about the Takeover Proposal that has been made and the Person that made it; (2B) furnish information with respect to the Company has to the Person making such Takeover Proposal pursuant to a customary confidentiality agreement the benefits of the terms are which no more favorable to the Person making such Takeover Proposal than the Confidentiality Agreement in any material respect; provided prior written notice that such confidentiality agreement shall not prohibit disclosure to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Superior Proposal and shall include a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit such Takeover Proposal, including the Company Board not to take identity of the Person making such actionTakeover Proposal and any material changes thereto; and (4C) the Company Board shall have considered engage in good faith any changes to this Agreement discussions or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation negotiations with its financial advisor(s) and outside legal counsel, that such Acquisition Proposal would continue to constitute a Superior Proposal, and that failure to take such action would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law, if such changes offered in writing by Parent were given effect. In the event that a Superior Proposal is modified by the Person making such proposal, the Company shall be required to deliver a new written notice to Parent of Takeover Proposal regarding such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking any action described in clauses (i) or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect to any such modified Superior Takeover Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant to the prior sentence), the Company shall have no further obligation in the future to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any Person.

Superior Proposals. At Notwithstanding anything to the contrary set forth in this Section 5.1, from the No-Shop Period Start Date until the Company’s receipt of the 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 time prior 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 pursuant to an Acceptable Confidentiality Agreement to any Third Person or its Representatives that has made or delivered to the Company Stockholders Meeting, if the Company receives a bona fide Acquisition Proposal that is not withdrawnafter the No-Shop Period Start Date, which 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 this Section 5.02, that the Company Board determines in good faith (after consultation with its financial advisor(s) and outside legal counsel) constitutes a Superior Proposal, the Company Board may (i) effect a Company Adverse Recommendation Change and/or (ii) authorize the Company to terminate this Agreement pursuant to Section 8.01(d) to enter into an Alternative Acquisition Agreement5.1(b); provided, however, that the Company Board may only take the actions described in (xor a committee thereof) clause (ii) if the Company has paid the Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (i) or (ii) if: (1) the Company Board shall have determined in good faith, faith (after consultation with its financial advisor and outside legal counsel, ) that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law; (2) the Company has provided prior written notice to Parent of the Company Board’s intention to take such action at least three (3) Business Days in advance of taking such action, which notice shall specify the material terms of the Acquisition Proposal either constitutes a Superior Proposal and shall include or is reasonably likely to lead to a copy of the relevant proposed transaction agreement with, and the identity of, the Person making the Superior Proposal, and copies of any other written materials to the extent such materials contain any financial terms, conditions or other terms relating to such Superior Proposal; (3) after providing such notice and prior to taking any such action, the Company shall have, and shall have caused its Representatives to, negotiate with Parent Board (or a committee thereof) has determined in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action; and (4) the Company Board shall have considered in good faith any changes to this Agreement or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Standard Time on the third (3rd) Business Day of such three (3) Business Day period and shall have determined in good faith, after consultation with its financial advisor(s) advisor and outside legal counsel, ) that such Acquisition Proposal would continue to constitute a Superior Proposal, and that the failure to take such action the actions contemplated by this Section 5.1(c) would continue to be inconsistent with the directors’ its fiduciary duties under Applicable pursuant to applicable Law, if such changes offered in writing by Parent were given effect. In the event ; and provided further that a Superior Proposal is modified by the Person making such proposal, the Company shall be required will promptly (and in any event within 24 hours) make available to deliver a new written notice to the Parent of such modified Superior Proposal pursuant to clause (B) of this Section 5.02(e) at least two (2) Business Days in advance of taking and its Representatives any action described in clauses (i) non-public information concerning the Company, its Subsidiaries or (ii) of this Section 5.02(e) and shall again comply with the provisions of this Section 5.02(e) with respect Affiliates that is provided to any such modified Superior Proposal. Notwithstanding the foregoing, after compliance with the foregoing clause (B) and (C) with respect to any three Superior Proposals (including any modification pursuant Third Person or its Representatives that was not previously made available to the Parent prior sentence), to or substantially concurrently (but in no event later than 24 hours after) the Company shall have no further obligation in the future time it is provided to comply with the notification and negotiation obligations set forth in this Section 5.02(e) with respect to any Superior Proposal or modification to a Superior Proposal made by any such Third Person.