Common use of Board Actions Clause in Contracts

Board Actions. (a) Notwithstanding Section 5.3 or any other provision of this Agreement to the contrary, following the receipt after the date hereof by the Company of a bona fide proposal from a Person for a Competing Transaction that the Board believes in good faith (after consultation with outside counsel and with the Company’s financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the Board, the Board may, directly or through any of its Representatives, (i) contact such Person and its Representatives for the purpose of clarifying the proposal and any material terms thereof and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (ii) if the Board determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the Board may (directly or through its Representatives) (A) furnish non-public information with respect to the Company and the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality Agreement) with such Person, (B) participate in discussions and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Board determines in good faith constitutes a Superior Competing Transaction, but prior to the Company Stockholder Approval, terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(f) and 8.2(c). Nothing in this Agreement shall prevent the Board from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction, (2) issuing a “stop, look and listen” announcement, (3) complying with its disclosure obligations under U.S. federal or state law regarding a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to take. (b) The Board shall not effect any Change in Recommendation or take any action referred to in Section 5.4(a)(ii)(C) unless the Board has (i) given the Purchasers at least three (3) Business Days’ notice of its intent to take such action and (ii) with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate with the Purchasers in good faith any amendment to this Agreement proposed by the Purchasers and taken into account any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Superior Competing Transaction thereafter remains a Superior Competing Transaction.

Board Actions. (a) Notwithstanding Section 5.3 5.5 or any other provision of this Agreement to the contrary, following the receipt after the date hereof by the Company AMLI of a bona fide proposal from a Person third party for a Competing Transaction (that was not solicited, encouraged or facilitated in violation of Section 5.5) the Board believes in good faith of Trustees may (after consultation with outside counsel and with the Company’s financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the Board, the Board may, directly or through any of its Representatives, (iI) contact such Person and its Representatives advisors solely for the purpose of clarifying the proposal and any material terms thereof contingencies and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (iiII) if the Board of Trustees determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the AMLI Board of Trustees may (directly or through its Representativesadvisors or representatives) (Ai) furnish non-public information with respect to the Company AMLI and the Company AMLI Subsidiaries to the Person that who made such proposal pursuant (provided that AMLI (A) has previously or concurrently furnished such information to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality Agreement) with such PersonPurchaser, (B) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to AMLI as the Confidentiality Agreement and (C) shall notify Purchaser in writing prior to providing any such information), (ii) disclose to its shareholders any information required to be disclosed under applicable Law, (iii) participate in discussions and negotiations with such Person regarding such proposal and (Civ) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Board determines in good faith constitutes a Superior Competing Transaction, but prior to the Company Stockholder AMLI Shareholder Approval, (A) withdraw or modify in a manner adverse to Purchaser, or fail to make, the AMLI Recommendation or recommend that AMLI Common Shareholders approve such Superior Competing Transaction, (B) terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(fSection 7.1(g) and 8.2(cor (C) take any action that any court of competent jurisdiction orders AMLI to take, but in each case referred to in clauses (i) through (iv) only if, after complying with Section 5.6(b), the AMLI Board of Trustees determines in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with its duties to AMLI or its shareholders under applicable Law. Nothing in this Agreement Section 5.6 shall prevent the AMLI Board of Trustees from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction; provided, (2) issuing a “stophowever, look and listen” announcement, (3) complying with its disclosure obligations under U.S. federal or state law regarding that neither AMLI nor the AMLI Board of Trustees shall be permitted to recommend pursuant to such provision a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to takewhich is not a Superior Competing Transaction. (b) The AMLI Board of Trustees shall not effect any Change in Recommendation or take any action of the actions referred to in Section 5.4(a)(ii)(C) unless the Board has clauses (i) given the Purchasers at least through (iv) of Section 5.6(a) unless not fewer than three (3) Business Days’ notice of its intent Days prior to take such action and (ii) with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate with the Purchasers in good faith any amendment to this Agreement proposed by the Purchasers and taken into account taking any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of action, AMLI shall have, during such notice, in each case, prior to the end of such three-three Business Day period, and such Superior Competing negotiated in good faith with Purchaser concerning any proposed amendments to this Agreement, the other Transaction thereafter remains a Superior Competing TransactionDocuments or the transactions contemplated hereby or thereby.

Board Actions. (a) Notwithstanding anything to the contrary in Section 5.3 5.4, at any time prior to obtaining the Required Shareholder Approval for the Target Party, the Target Party may furnish or any other provision cause to be furnished information to, and enter or cause to be entered into discussions with, and only with, a Person (and its representatives) who has made a bona fide written Acquisition Proposal that was not solicited on or after the date of this Agreement to the contrary, following the receipt after the date hereof by the Company of a bona fide proposal and that did not otherwise result from a Person for a Competing Transaction that the Board believes in good faith (after consultation with outside counsel and with the Company’s financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.35.4(a), but only to if the extent required by Target Party’s Special Committee (the fiduciary obligations of the Board, the Board may, directly or through any of its Representatives, “Target Special Committee”) has (i) contact such Person and its Representatives for the purpose of clarifying the proposal and any material terms thereof and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (ii) if the Board determines determined in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Competing Transaction, and (ii) obtained from such Person an executed confidentiality agreement containing terms that are determined in good faith by the Board may Target Special Committee to be substantially similar to and not less favorable to the Target Party and the Non-Target Parties, in the aggregate, than those contained in the Confidentiality Agreement (directly or through its Representativesother than those relating to any standstill provisions contained therein) (A) furnish non-public it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such Person or having the effect of prohibiting the Target Party from satisfying its obligations under this Agreement). Unless such information with respect has been previously provided to the Company and Non-Target Parties, all information that is provided by the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate Target Party to the Person making such proposal than Acquisition Proposal shall be provided to the Investor Confidentiality AgreementNon-Target Parties. (b) with such PersonNotwithstanding anything to the contrary in Section 5.4, (B) participate in discussions at any time prior to obtaining the Required Shareholder Approval for the Target Party, if the Target Party receives an unsolicited written Acquisition Proposal that did not result from a breach of Section 5.4 and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Board Target Special Committee determines in good faith (after consultation with its outside legal counsel and its financial advisor or advisors) constitutes a Superior Competing Transaction, but prior the Target Party may terminate this Agreement to enter into a definitive agreement with respect to such Superior Competing Transaction if its Special Committee determines in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with its fiduciary duties to the Company Stockholder Approvalshareholders of such Target Party under applicable Law; provided that concurrently with such termination the Target Party pays the applicable Termination Fee payable pursuant to Section 8.3; and provided, further, that the Target Party may not terminate this Agreement pursuant toto this Section 7.1(b) unless (i) the Target Party shall have provided prior written notice (a “Termination Notice”) to the Non-Target Parties (including the Special Committees thereof), and subject at least five Business Days in advance of taking such action (the “Notice Period”), of its intention to compliance with, Sections 9.1(f) and 8.2(c). Nothing in terminate this Agreement shall prevent the Board from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act to enter into a definitive agreement with respect to a such Superior Competing Transaction, (2) issuing a “stop, look which notice shall specify the material terms and listen” announcement, (3) complying with its disclosure obligations under U.S. federal or state law regarding a conditions of the Superior Competing Transaction or (4) taking any action that any court including the identity of competent jurisdiction orders the Company party making the Superior Competing Transaction), and shall be accompanied by a copy of a draft of the definitive agreement proposed to take. (b) The Board shall not effect any Change in Recommendation or take any action referred be entered into with respect to in Section 5.4(a)(ii)(C) unless the Board has (i) given the Purchasers at least three (3) Business Days’ notice of its intent to take such action Superior Competing Transaction, and (ii) during the Notice Period, the Target Party shall negotiate in good faith with respect the Non-Target Parties (to an action referred the extent the Non-Target Parties desire to in Section 5.4(a)(ii)(Cdo so) with respect to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Competing TransactionTransaction and provided further, negotiate with however, that after the Purchasers in good faith any amendment expiration of such five Business Day period and prior to the termination of this Agreement pursuant to this Agreement proposed by Section 8.1(f), the Purchasers and taken Target Special Committee shall have confirmed (after taking into account any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of such notice, in each case, prior adjustments to the end terms and conditions of such three-Business Day period, and such Superior Competing Transaction thereafter remains this Agreement) that the Acquisition Proposal continues to be a Superior Competing Transaction.

Board Actions. (a) Notwithstanding Section 5.3 8.10 or any other provision of this Agreement to the contrary, following the receipt after the date hereof by the Company of a bona fide proposal from a Person for a Competing Transaction that the Board believes in good faith (after consultation with outside counsel and with the Company’s financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the Board, either the Board may, directly of Trust Managers of Trust or through any of its Representatives, (i) contact such Person and its Representatives for the purpose of clarifying the proposal and any material terms thereof and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (ii) if the Board determines of Directors of Capital, as determined in good faith following after consultation with its outside legal counsel and financial advisors that such proposal for a Competing Transaction advisors, Trust or Capital, as applicable, may: (a) disclose to its shareholders any information that, in the opinion of its Board, after consultation with outside legal counsel, is reasonably likely required to lead to a Superior Competing Transaction, the Board may be disclosed under applicable law; (directly or through its Representativesb) (A) furnish non-public information with respect to the Company and the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (extent applicable, comply with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality Agreement) with such Person, (B) participate in discussions and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Board determines in good faith constitutes a Superior Competing Transaction, but prior to the Company Stockholder Approval, terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(f) and 8.2(c). Nothing in this Agreement shall prevent the Board from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction; (c) in response to an unsolicited request therefor, participate in discussions or negotiations with, or furnish information with respect to it pursuant to a confidentiality agreement not materially less favorable to it than the confidentiality provisions contained herein (2) issuing a “stopas determined by its outside counsel), look and listen” announcement, (3) complying or otherwise respond to or deal with its disclosure obligations under U.S. federal or state law regarding any person in connection with a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to take.proposed by such person; and (bd) The Board shall not effect any Change approve or recommend (and in Recommendation connection therewith withdraw or take any action referred to in Section 5.4(a)(ii)(Cmodify its approval or recommendation of this Agreement or the Merger) unless the Board has a Superior Competing Transaction (ias defined below) given the Purchasers at least three (3) Business Days’ notice of its intent to take such action and (ii) enter into an agreement with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate with the Purchasers in good faith any amendment to this Agreement proposed by the Purchasers and taken into account any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Superior Competing Transaction thereafter remains a (for purposes of this Agreement, "Superior Competing Transaction" means a bona fide proposal of a Competing Transaction made by a third party which has not been solicited or initiated by Trust or Capital, as applicable, in violation of Section 8.10 and which a majority of the members of the Board of Trust Managers of Trust or the Board of Directors of Capital, as applicable, determines in good faith (A) to be more favorable to Trust's or Capital's shareholders, as applicable, from a financial point of view than the Merger, and (B) is reasonably capable of being consummated.

Board Actions. (a) Notwithstanding Section 5.3 4.4 or any other provision of this Agreement to the contrary, following to the receipt extent the Board of Directors of CPA:12 determines that its fiduciary duties under Law so require, as determined by such Board in good faith after consultation with outside counsel, CPA:12 may: (a) disclose to the date hereof by CPA:12 Stockholders any information required to be disclosed under applicable Law; (b) to the Company extent applicable, comply with Rule 14e-2(a) or Rule 14(d)-9 promulgated under the Exchange Act with respect to a Competing Transaction; provided, however, that neither CPA:12 nor its Board of Directors shall be permitted to approve or recommend a bona fide Competing Transaction which is not a Superior Competing Transaction; (c) if it receives a proposal from a Person for a Competing Transaction (that the Board believes was not solicited in good faith (after consultation with outside counsel and with the Company’s financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach violation of Section 5.34.4), but only (x) furnish non-public information with respect to CPA:12 and the CPA:12 Subsidiaries to the extent required by the fiduciary obligations of the Board, the Board may, directly or through any of its Representatives, Person who made such proposal (provided that CPA:12 (i) has previously or concurrently furnished such information to CPA:14 and (ii) shall furnish such information pursuant to a confidentiality agreement) and (y) contact such Person third party and its Representatives advisors solely for the purpose of clarifying the proposal and any material terms thereof contingencies and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and Transaction; (iid) if the its Board of Directors determines in good faith following consultation (after consulting with its legal outside counsel and financial advisors advisors) that a proposal for a Competing Transaction (which proposal was not solicited in breach of Section 4.4) is reasonably likely to lead to a Superior Competing Transaction, continue to furnish non-public information and participate in negotiations regarding such proposal; provided, however, that not fewer than 24 hours prior to any determination by CPA:12’s Board of Directors that the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the Board may (directly or through its Representatives) (A) furnish non-public information with respect to the Company CPA:14 shall be notified orally and the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality Agreement) with such Person, (B) participate in discussions and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt writing of a proposal for a Competing Transaction that the Board determines in good faith constitutes a Superior Competing Transaction, but prior to the Company Stockholder Approval, terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(f) and 8.2(c). Nothing in this Agreement shall prevent the Board from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction, (2) issuing a “stop, look and listen” announcement, (3) complying with its disclosure obligations under U.S. federal or state law regarding a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to take. (b) The Board shall not effect any Change in Recommendation or take any action referred to in Section 5.4(a)(ii)(C) unless the Board has (i) given the Purchasers at least three (3) Business Days’ notice of its intent CPA:12’s Board’s intention to take such action and (ii) CPA:12 shall negotiate in good faith with respect CPA:14 concerning any such new proposal by CPA:14 prior to an action referred the expiration of such 24-hour period; provided further that CPA:12 shall promptly notify CPA:14 if the CPA:12 Board of Directors determines that a Competing Transaction is not, and is unlikely to in Section 5.4(a)(ii)(C) with respect to become, a Superior Competing Transaction, negotiate with the Purchasers ; and (e) approve or recommend (and in good faith any amendment to connection therewith withdraw or modify its approval or recommendation of this Agreement proposed by and the Purchasers and taken into account any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Merger) a Superior Competing Transaction thereafter remains a or enter into an agreement with respect to such Superior Competing Transaction.

Board Actions. (a) Notwithstanding Section 5.3 or any other provision of this Agreement to the contrary, following the receipt after the date hereof by the Company or any Company Subsidiary of a bona fide written proposal from a Person for a Competing Transaction that a majority of the disinterested members of the Company Board of Directors believes in good faith (after consultation with outside counsel and with the Company’s independent financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the BoardCompany Board of Directors, as determined in good faith by a majority of the disinterested members thereof after receiving the advice of outside counsel, the Company Board of Directors may, directly or through any of its Representatives, (i) contact such Person and its Representatives for the purpose of clarifying the proposal and any material terms thereof and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (ii) if the Company Board of Directors determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the Company Board of Directors may (directly or through its Representatives) (A) furnish non-public nonpublic information with respect to the Company and the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality AgreementAgreement dated May 9, 2006, between Parent and the Company) with such Person, (B) participate in discussions and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Company Board of Directors determines in good faith constitutes a Superior Competing Transaction, but prior to the Company Stockholder Approval, terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(fSection 7.1(i) and 8.2(cSection 7.2(b)(iii). Nothing in this Agreement shall prevent the Company Board of Directors from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction, (2) issuing a “stop, look and listen” announcement, (3) complying with its disclosure obligations under U.S. U. S. federal or state law regarding a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to take. (b) The Company Board of Directors shall not effect any Change in Recommendation or take any action referred to in Section 5.4(a)(ii)(C) unless the Com- pany Board of Directors has (i) given the Purchasers Parent at least three (3) Business Days’ notice of its intent to take such action and (ii) with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate negotiated with the Purchasers Parent in good faith any amendment to this Agreement proposed by the Purchasers Parent and taken into account any such amendment entered into or to which the Purchasers Parent irrevocably covenants to enter into and for which all internal approvals of the Purchasers Parent have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Superior Competing Transaction thereafter remains a Superior Competing Transaction.

Board Actions. (a) Notwithstanding Section 5.3 or any other provision of this Agreement to the contrary, prior to the earlier of the Acceptance Date or the receipt of Company Stockholder Approval and following the receipt after the date hereof by the Company or any Company Subsidiary of a bona fide written proposal from a Person for a Competing Transaction that a majority of the disinterested members of the Company Board of Directors believes in good faith (after consultation with outside counsel and with the Company’s independent financial advisors) constitutes or may reasonably be expected to result in a Superior Competing Transaction, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the BoardCompany Board of Directors, as determined in good faith by a majority of the disinterested members thereof after receiving the advice of outside counsel, the Company Board of Directors may, directly or through any of its Representatives, (i) contact such Person and its Representatives for the purpose of clarifying the proposal and any material terms thereof and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and (ii) if the Company Board of Directors determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the Company Board of Directors may (directly or through its Representatives) (A) furnish non-public nonpublic information with respect to the Company and the Company Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than the Investor Confidentiality AgreementAgreement dated May 9, 2006, between Parent and the Company) with such Person, (B) participate in discussions and negotiations with such Person regarding such proposal and (C) subject to Section 5.4(b), following receipt of a proposal for a Competing Transaction that the Company Board of Directors determines in good faith constitutes a Superior Competing Transaction, but prior to the earlier of the Acceptance Date or the Company Stockholder Approval, terminate this Agreement pursuant to, and subject to compliance with, Sections 9.1(fSection 7.1(i) and 8.2(cSection 7.2(b)(iii). Nothing in this Agreement shall prevent the Company Board of Directors from (1) complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Competing Transaction, (2) issuing a “stop, look and listen” announcement, (3) complying with its disclosure obligations under U.S. federal or state law regarding a Competing Transaction or (4) taking any action that any court of competent jurisdiction orders the Company to take. (b) The Company Board of Directors shall not effect any Change in Recommendation or Change in Merger Recommendation or take any action referred to in Section 5.4(a)(ii)(C) unless the Company Board of Directors has (i) given the Purchasers Parent at least three (3) Business Days’ notice of its intent to take such action and (ii) with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate negotiated with the Purchasers Parent in good faith any amendment to this Agreement proposed by the Purchasers Parent and taken into account any such amendment entered into or to which the Purchasers Parent irrevocably covenants to enter into and for which all internal approvals of the Purchasers Parent have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Superior Competing Transaction thereafter remains a Superior Competing Transaction.

Board Actions. (a) Notwithstanding Section 5.3 or any other provision of anything in this Agreement to the contrary, prior to the earlier of the Acceptance Date and the Termination Date, following the receipt after the date hereof by the Company of a an unsolicited bona fide proposal Alternative Proposal that did not result from or arise in connection with a Person for breach of Section 5.3 and that a Competing Transaction that majority of the members of the Board believes in good faith (faith, after consultation with outside counsel and with the Company’s outside counsel and financial advisors) , constitutes or may reasonably be expected to result in lead to a Superior Competing TransactionProposal (such an Alternative Proposal, a “Qualifying Alternative Proposal”), the Company may, and which proposal was not, directly or indirectly, the result of a breach of Section 5.3, but only to the extent required by the fiduciary obligations of the Board, the Board may, directly or through any of may direct its Representatives, Representatives to: (i) contact the Person making such Person and Qualifying Alternative Proposal or its Representatives for the purpose purposes of clarifying the proposal and any material terms thereof of such Qualifying Alternative Proposal and the capability of consummation, so as to determine whether the proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction and consummating such Qualifying Alternative Proposal; (ii) if the Board determines in good faith following consultation with its legal and financial advisors that such proposal for a Competing Transaction is reasonably likely to lead to a Superior Competing Transaction, the Board may (directly or through its Representatives) (A) furnish non-public information with respect to the Company and the Company its Subsidiaries to the Person that made such proposal pursuant to an appropriate confidentiality agreement (with confidentiality terms no less restrictive in the aggregate to the Person making such proposal than Qualifying Alternative Proposal and its representatives pursuant to a customary confidentiality agreement substantially similar to, with respect to the Investor confidentiality terms and provisions thereof, the Confidentiality Agreement; and (iii) participate in discussions or negotiations with such PersonPerson and its representatives regarding such Qualifying Alternative Proposal. (b) The Board shall not effect a Change of Recommendation (other than with respect to a Company Intervening Event in compliance with Section 5.4(c) hereof) or approve, endorse, or recommend any Qualifying Alternative Proposal that the Board determines, in good faith after taking any of the actions described in clause (a) and in consultation with the Company’s outside counsel and financial advisors, constitutes a Superior Proposal, or enter into a definitive agreement providing for the implementation of such Superior Proposal unless (A) the Company has given Parent at least three (3) Business Days’ written notice advising Parent that the Board has determined that the Company has received a Superior Proposal, specifying the terms and conditions of such Superior Proposal and identifying the person or persons making such Superior Proposal, (B) participate the Company and its financial and legal advisors negotiate in discussions good faith with Parent and negotiations with its financial and legal advisors (to the extent Parent wishes to negotiate) to provide Parent the opportunity to make an Alternative Proposal in response to such Person regarding such proposal Superior Proposal, and (C) subject Parent does not, within three (3) Business Days of Parent’s receipt of the notice referred to Section 5.4(bin clause (A), following receipt make an Alternative Proposal that a majority of a proposal for a Competing Transaction that the members of the Board determines in good faith constitutes a faith, after consultation with outside counsel and financial advisors, to be at least as favorable to the Company’s stockholders as such Superior Competing TransactionProposal. (c) In addition, but notwithstanding any provision in this Section 5.4 to the contrary and absent any breach by the Company of the terms of Section 5.3, prior to the earlier of the Acceptance Date and the Termination Date, the Board may, in response to a material development or material change in circumstances occurring or arising after the date hereof (except for any material development or material change related to the ongoing commercial relationship between the Company Stockholder Approvaland Parent and their respective Affiliates), terminate that was neither known to the Board nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Alternative Proposal) (such material development or material change in circumstances, a “Company Intervening Event”) effect a Change of Recommendation if the Board has concluded in good faith, after consultation with its outside counsel, that, in light of such Company Intervening Event, the failure of the Board to effect such Change of Recommendation would result in a breach of its fiduciary duties under applicable Law; provided that, the Board shall not be entitled to exercise its right to make a Change of Recommendation pursuant to this Section 5.4(c) unless the Company has (x) provided to Parent at least three (3) Business Days’ prior written notice advising Parent that the Board intends to take such action and specifying the reasons therefor in reasonable detail and (y) during such three (3) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent and its financial and legal advisors to amend this Agreement pursuant to, and subject to compliance with, Sections 9.1(fin such a manner that obviates the need for a Change of Recommendation. (d) and 8.2(c). Nothing contained in this Agreement shall prevent prohibit the Company or the Board from (1i) complying with Rule 14d-9 or and Rule 14e-2(a) promulgated under the Exchange Act with respect regard to a Competing Transactionan Alternative Proposal, (2ii) issuing a “stop, look and listen” announcementstatement pending disclosure of its position thereunder, (3iii) complying with its disclosure obligations under U.S. federal or state law Law regarding a Competing Transaction an Alternative Proposal or (4iv) taking any action that any court of competent jurisdiction orders the Company to take; provided, however, that in no event shall this Section 5.4(d) affect the obligations of the Company specified in Sections 5.4(b) or (c) hereof. None of the actions pursuant to clauses (i) through (iv) above shall be deemed to be a Change of Recommendation, a proposal to effect a Change of Recommendation or an approval, endorsement or recommendation of any Alternative Proposal so long as the Board expressly and publicly reaffirms its Board Recommendation in any such disclosure or communication pursuant to clauses (i) through (iii) above and substantially concurrently with the taking of any action pursuant to clause (iv) above. (be) The Board following terms shall not effect any Change in Recommendation or take any action referred to in Section 5.4(a)(ii)(C) unless have the Board has (i) given the Purchasers at least three (3) Business Days’ notice of its intent to take such action and (ii) with respect to an action referred to in Section 5.4(a)(ii)(C) with respect to a Superior Competing Transaction, negotiate with the Purchasers in good faith any amendment to this Agreement proposed by the Purchasers and taken into account any such amendment entered into or to which the Purchasers irrevocably covenants to enter into and for which all internal approvals of the Purchasers have been obtained since receipt of such notice, in each case, prior to the end of such three-Business Day period, and such Superior Competing Transaction thereafter remains a Superior Competing Transaction.meanings set forth below: