Common use of Superior Proposals Clause in Contracts

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c)), at any time from the date of this Agreement until the Effective Time, the Company and the Company Board may, directly or indirectly through one or more of their Representatives, (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel of, the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal, and the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and provided, further, however, that the Company will promptly (and in any event, within two (2) Business Days) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (that was not solicited in each case, if requested by such Personmaterial breach of Section 5.3(a), in each case, with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(b) would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) one Business DaysDay) make available to Parent any non-public information concerning the Company Group and its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from following the date of this Agreement until and prior to the Effective Timelater of (x) 11:59 p.m. (New York City time) on the date that is thirty-five (35) days after the date hereof (the “Consent End Date”) (in the event that the Stockholder Written Consent is delivered to the Company in accordance with Section 6.3(a) hereof) or (y) the time when the Requisite Stockholder Approval is obtained (the “Stockholder Approval Date”) (in the event the Stockholder Written Consent is not delivered to the Company in accordance with Section 6.3(a) and the Agreement is not terminated in accordance with Section 8.1(j)), the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement and (ii) prior to the Stockholder Approval Date, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of this Section 7.35.3; provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) one Business DaysDay) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement No-Shop Period Start Date, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of Section 7.35.3(b); provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(c) would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 6.1 (but subject to the provisos in this Section 7.3(b) 6.1(b)), and subject without limitation to the rights of the Company pursuant to Section 7.3(c)6.1(a), at any time from the date of this Agreement hereof until the Effective TimeCompany’s receipt of the Company Shareholder Approval, the Company and the Company Board may, directly or indirectly through one or more of their RepresentativesRepresentatives (including its financial advisor and outside legal counsel), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group or its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group or its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Alternative Acquisition Proposal after the date of this Agreement that did not result from a breach of Section 6.1, and (ii) otherwise facilitate such Alternative Acquisition Proposal or assist such Person (and its Representatives and financing sourcesRepresentatives) with such Alternative Acquisition Proposal (in each case, if requested by such Person), in each case, with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, howeverthat prior to and as a condition precedent to taking such actions, that the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Alternative Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to or result in a Superior Proposal, Proposal and the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b6.1(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group or its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Company’s financial advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement Agreement, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of Section 7.35.3(b); provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(c) would be inconsistent with its fiduciary duties obligations pursuant to applicable Law; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))‎5.3, at any time from the date of this Agreement until the Effective Timedate that is thirty (30) Business Days following the date of this Agreement (the “Fiduciary Out Period”), the Company and the Company Board or the Special Committee may, directly or indirectly through one or more of their Representatives, (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made made, renewed or delivered to the Company a an unsolicited, written bona fide written Acquisition Proposal after during the date of this Agreement Fiduciary Out Period, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which an Acquisition Proposal that was not the Company Group result of a material breach of Section ‎5.3(a) and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board or the Special Committee has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal, Proposal and the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the such actions contemplated by this Section 7.3(b) would be reasonably likely to be inconsistent with its the Company Board’s or the Special Committee’s, as applicable, fiduciary duties pursuant under applicable Law; provided, that subject to applicable Law; and provided, further, however, that the Company will promptly (and in any event, within two (2) Business Days) make available shall provide to Parent and Merger Sub any non-public information concerning the Company Group or data that is provided to any Person given such Person or its Representatives access that was not previously made available to ParentParent or Merger Sub prior to or substantially concurrently to the time it is provided to such Person.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))Agreement, at any time from the date of this Agreement hereof until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the financial advisors set forth in Section 3.18 of the Company Disclosure Letter), (i) participate or engage in discussions or negotiations with, with or (ii) furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement Agreement, to any Person (or its Affiliates, Representatives or financing sources) that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement hereof, and (ii) otherwise facilitate the making of such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person)Proposal, in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of Section 7.35.2(a); provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could would reasonably be expected to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.2(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Affiliates, Representatives or financing sources that was not previously made available to ParentParent or any of its Affiliates, Representatives or financing sources.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement hereof until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement hereof, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of Section 7.35.3(a); provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(b) would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) one Business DaysDay) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement No-Shop Period Start Date, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, case with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to an Acquisition Proposal that did not result from any material breach of Section 7.35.3(b); provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(c) would be inconsistent with its fiduciary duties obligations pursuant to applicable Lawlaw; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.. Table of Contents

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 5.3 (but subject to the provisos in this Section 7.3(b) and subject to Section 7.3(c5.3(b)), at any time from the date of this Agreement No-Shop Period Start Date until the Effective TimeCompany’s receipt of the Requisite Stockholder Approval, the Company and the Company Board Special Committee may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement Agreement, and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case, with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and the Company Board Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Lawlaw; and provided, provided further, however, that the Company will promptly (and in any event, event within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (but subject to the provisos in this Section 7.3(b5.3(b) and subject to except as contemplated by Section 7.3(c)5.3(a), at any time from the date of this Agreement until the Effective TimeCompany’s receipt of the Requisite Shareholder Approval, the Company and the Company Board may, after giving Parent 24 hours’ prior notice of its intention to do so, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made made, renewed or delivered to the Company a bona fide written an Acquisition Proposal after the date of this Agreement that did not result from any material breach of Section 5.3(b), and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person)) if, in each caseand only if, with respect to which the Company Group and its Representatives have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board has shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, Proposal and the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions such action contemplated by this Section 7.3(b5.3(c) would be inconsistent with likely cause the Company Board to violate its fiduciary duties pursuant to under applicable LawLaws; and provided, further, however, provided that the Company will promptly (and and, in any event, within two (2) Business Days24 hours) make available to Parent any non-public information concerning the Company Group and its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent.

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 7.3 (5.3(a) but subject to the provisos other limitations in this Section 7.3(b) and subject to Section 7.3(c))5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Effective TimeExpiration Date, the Company and the Company Board Special Committee may, directly or indirectly through one or more of their RepresentativesRepresentatives (including the Special Committee Advisor), (i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel ofpersonnel, of the Company Group solely pursuant to to, and only following execution of, an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a bona fide written an Acquisition Proposal after the date of this the Original Agreement if and solely to the extent that (i) such Acquisition Proposal did not result from a breach of Section 5.3, (ii) otherwise facilitate prior to taking such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each caseaction, if requested by such Person), in each case, with respect to which the Company Group and its Representatives Special Committee must have complied in all respects with their obligations pursuant to Section 7.3; provided, however, that the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could is reasonably be expected likely to lead to a Superior Proposal, and (iii) prior to taking such action, the Company Board has Special Committee must have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 7.3(b5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and provided, provided further, however, that the Company will promptly (and in any event, event within two twenty-four (224) Business Dayshours thereafter) make available to Parent any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent.