Common use of Superior Proposals Clause in Contracts

Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an Acquisition Proposal after the date of this Agreement that was not solicited in material breach of Section 5.3(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 is reasonably likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary obligations pursuant to applicable law; and provided further, however, that the Company will promptly (and in any event within one Business Day) make available to Parent any non-public information concerning the Company 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 5.3, from the No-Shop Period Start Date (or, with respect to an Excluded Party, from the date of this Agreement hereof) until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) Special Committee may, directly or indirectly through one or more of their Representatives (including the AdvisorAdvisors), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an Acquisition Proposal after the No-Shop Period Start Date (or, with respect to an Excluded Party, after the date of this Agreement hereof), 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 with respect to an Acquisition Proposal that was did not solicited in result from any material breach of Section 5.3(a5.3(b); provided, however, that the Company Board (or a committee thereof) 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 is reasonably likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) 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 5.3(b5.3(c) would be inconsistent with its fiduciary obligations duties pursuant to applicable law; and provided further, however, that the Company will promptly (and in any event within one Business Day24 hours) make available to Parent any non-public information concerning the Company and its Subsidiaries 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 5.37.3 (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 Company’s receipt of the Requisite Stockholder ApprovalEffective Time, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives Representatives, (including the Advisor), i) participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnelpersonnel of, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an a bona fide written Acquisition Proposal after the date of this Agreement that was not solicited and (ii) otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in material breach of 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 5.3(a)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 is could reasonably likely 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 5.3(b7.3(b) would be inconsistent with its fiduciary obligations duties pursuant to applicable lawLaw; and provided provided, further, however, that the Company will promptly (and in any event event, within one two (2) Business DayDays) make available to Parent any non-public information concerning the Company and its Subsidiaries 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 5.3‎5.3, from the date of this Agreement until the Company’s receipt date that is thirty (30) Business Days following the date of this Agreement (the Requisite Stockholder Approval“Fiduciary Out Period”), the Company and the Company Board (or a committee thereof) the Special Committee may, directly or indirectly through one or more of their Representatives (including the Advisor)Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made made, renewed or delivered to the Company an unsolicited, written bona fide Acquisition Proposal after during the date of this Agreement Fiduciary Out Period, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was not solicited in the result of a material breach of Section 5.3(a); provided, however, ‎5.3(a) and that the Company Board (or a committee thereof) 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 is could reasonably likely be expected to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the such actions contemplated by this Section 5.3(b) would be reasonably likely to be inconsistent with its the Company Board’s or the Special Committee’s, as applicable, fiduciary obligations pursuant duties under applicable Law; provided, that subject to applicable law; and provided furtherLaw, however, that the Company will promptly (and in any event within one Business Day) make available shall provide to Parent and Merger Sub any non-public information concerning the Company and its Subsidiaries 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 5.3, from the date of this Agreement hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an Acquisition Proposal after the date of this Agreement hereof, 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 with respect to an Acquisition Proposal that was did not solicited in result from any material breach of Section 5.3(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 is reasonably likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary obligations pursuant to applicable law; and provided further, however, that the Company will promptly (and in any event within one Business Day) make available to Parent any non-public information concerning the Company and its Subsidiaries 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 5.3Agreement, from the date of this Agreement and continuing until the Company’s receipt of the Requisite Company Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor)its Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to to, any Person or its Representatives that has made made, renewed or delivered to the Company an Acquisition Proposal after the date of this Agreement or to such Person’s Representatives (including potential financing sources of such Person), and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was not solicited in received as a result of a material breach of Section 5.3(a); provided, however, that in the event that the Company Board (or a committee thereofacting upon the recommendation of the Special Committee) has determined in good faith (after consultation with its financial advisor advisors and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b) such action would be inconsistent with its fiduciary obligations pursuant applicable Law; provided, further, that, subject to applicable law; and provided furtherLaw, however, that the Company will shall promptly (and in any event event, within one Business Dayforty-eight (48) hours) make available to Parent and Merger Sub any material non-public information concerning the Company and its Subsidiaries that is provided to any such Person or its Representatives pursuant to this Section 5.3(b) that was not previously made available to ParentParent and Merger Sub.

Superior Proposals. Notwithstanding anything to contrary set forth in Section 5.3(a) but subject to the other limitations in this Section 5.3, at any time from the date of this Agreement No-Shop Period Start Date until the Company’s receipt of the Requisite Stockholder ApprovalExpiration Date, the Company and the Company Board (or a committee thereof) Special Committee may, directly or indirectly through one or more of their Representatives (including the Special Committee Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries Group solely pursuant to to, and only following execution of, an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an Acquisition Proposal after the date of this the Original Agreement if and solely to the extent that was (i) such Acquisition Proposal did not solicited in material result from a breach of Section 5.3(a); provided5.3, however(ii) prior to taking such action, that the Company Board (or a committee thereof) has Special Committee must have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, and (iii) prior to taking such action, the Company Board (or a committee thereof) has Special Committee must have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary obligations duties pursuant to applicable lawLaw; and provided further, however, that the Company will promptly (and in any event within one Business Daytwenty-four (24) hours thereafter) make available to Parent any non-public information concerning the Company and its Subsidiaries 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 5.35.3(b) and except as contemplated by Section 5.3(a), from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Shareholder Approval, the Company and the Company Board (or a committee thereof) may, after giving Parent 24 hours’ prior notice of its intention to do so, directly or indirectly through one or more of their Representatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made made, renewed or delivered to the Company an Acquisition Proposal after the date of this Agreement that was did not solicited in result from any material breach of Section 5.3(a5.3(b); provided, howeverand otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, that if requested by such Person) if, and only if, the Company Board (or a committee thereof) has shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal, Proposal and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions such action contemplated by this Section 5.3(b5.3(c) would be inconsistent with likely cause the Company Board to violate its fiduciary obligations pursuant to duties under applicable lawLaws; and provided further, however, that the Company will promptly (and and, in any event event, within one Business Day24 hours) make available to Parent any non-public information concerning the Company 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 5.36.1 (but subject to the provisos in this Section 6.1(b)), and without limitation to the rights of the Company pursuant to Section 6.1(a), at any time from the date of this Agreement hereof until the Company’s receipt of the Requisite Stockholder Company Shareholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisorits financial advisor and outside legal counsel), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company an Alternative Acquisition Proposal after the date of this Agreement that was did not solicited in material result from a breach of Section 5.3(a6.1, and otherwise facilitate such Alternative Acquisition Proposal or assist such Person (and its Representatives) with such Alternative Acquisition Proposal (in each case, if requested by such Person); provided, howeverthat prior to and as a condition precedent to taking such actions, 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 Alternative Acquisition Proposal either constitutes a Superior Proposal or is could reasonably likely be expected to lead to or result in a Superior Proposal, Proposal and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b6.1(b) would be inconsistent with its fiduciary obligations duties pursuant to applicable lawLaw; and provided further, however, that the Company will promptly (and in any event within one Business Day24 hours) make available to Parent any non-public information concerning the Company and or its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent.