Common use of Conditional Commitment Clause in Contracts

Conditional Commitment. If the Company’s Board of Directors (or a committee thereof) has resolved to make a Recommendation Withdrawal and provide a Notice of Superior Proposal pursuant to Section 5.2(f), in order to enable the Company’s Board of Directors (or a committee thereof) to be sufficiently comfortable that such Superior Proposal will remain available to the Company when and if this Agreement is terminated as and to the extent permitted hereunder in respect of such Superior Proposal, the Company may, before delivering a Notice of Superior Proposal to Parent, enter into a binding letter agreement (the “Conditional Commitment”) with the third party making such Superior Proposal (the “Committed Bidder”), which Conditional Commitment may (i) provide that the Committed Bidder is obligated, on behalf of the Company, to pay the Termination Fee and any other fee or expense required to be paid by the Company pursuant to the relevant provisions of this Agreement in accordance with the terms thereof, (ii) attach as an exhibit thereto a fully negotiated agreement and plan of merger providing for the transaction contemplated by the Superior Proposal and/or (iii) provide that the Company shall enter into such agreement and plan of merger, and/or that such agreement and plan of merger shall automatically become binding on the Company, only on and after (and in no event before) both (A) the termination of this Agreement in accordance with its terms and (B) the payment by the Company (or by the Committed Bidder on behalf of the Company) of the Termination Fee or any other fee or expense required to be paid hereunder; provided, however, that the Conditional Commitment may not (x) impose on the Company, its Subsidiaries or their respective former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees any liability or obligation except upon the valid termination of this Agreement as contemplated in clause (iii), (y) impose on Parent, Merger Sub, the Equity Financing Source or their respective former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees any liability or obligation at any time, including following the termination of this Agreement, or (z) relieve the Company of its obligations to Parent or Merger Sub under this Agreement, including its obligation to pay the Termination Fee pursuant to Section 7.3. Notwithstanding the foregoing, the parties further agree that, in the circumstances described in the immediately preceding sentence, until the termination of this Agreement in accordance with its terms, (1) in no event may the Conditional Commitment permit the Committed Bidder to make any SEC or other regulatory filings in connection with the transactions contemplated by the Conditional Commitment until the termination of this Agreement unless otherwise required by Law and (2) the Company shall otherwise remain subject to all of its obligations under this Agreement applicable thereto. The Company shall promptly provide Parent with a true and complete copy of any Conditional Commitment.

Conditional Commitment. If the Company’s Company Board of Directors (or a any committee thereof) has resolved to make a Company Board Recommendation Withdrawal Change and provide a Notice of Superior Proposal notice thereof pursuant to Section 5.2(f)5.3(d)(ii)(3) with respect to a Superior Proposal, in order to enable the Company’s Company Board of Directors (or a committee thereof) to be sufficiently comfortable that such Superior Proposal will remain available to the Company when and if this Agreement is terminated as and to the extent permitted hereunder in respect of such Superior Proposal, the Company may, before delivering a Notice of Superior Proposal to Parent, may enter into a binding letter agreement (the “Conditional Commitment”) with the third party making such Superior Proposal (the “Committed Bidder”), which Conditional Commitment may (i) provide that the Committed Bidder is obligated, on behalf of the Company, to pay the Company Termination Fee and any other fee or expense required to be paid by the Company pursuant to the relevant provisions of this Agreement in accordance with the terms thereof, (ii) attach as an exhibit thereto a fully negotiated agreement and plan of merger providing for the transaction contemplated by the Superior Proposal and/or (iii) provide that the Company shall enter into such agreement and plan of merger, and/or that such agreement and plan of merger shall automatically become binding on the Company, only on and after (and in no event before) both (A) the termination of this Agreement in accordance with its terms and (B) the payment by the Company (or by the Committed Bidder on behalf of the Company) of the Company Termination Fee or any other fee or expense required to be paid hereunder; provided, however, that the Conditional Commitment may not (x) impose on the Company, its Subsidiaries Company or their respective former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees Company Related Parties any liability or obligation except upon the valid termination of this Agreement as contemplated in clause (iii), above or (y) impose on Parent, Merger Sub, the Equity Financing Source Parent or their respective former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees Parent Related Parties any liability or obligation at any time, including following the termination of this Agreement, or (z) relieve the Company of its obligations to Parent or Merger Sub under this Agreement, including its obligation to pay the Termination Fee pursuant to Section 7.3. Notwithstanding the foregoing, the parties Parties further agree that, in the circumstances described in the immediately preceding sentence, until the termination of this Agreement in accordance with its terms, (1) in no event may the Conditional Commitment permit the Committed Bidder to make any SEC or other regulatory filings in connection with the transactions contemplated by the Conditional Commitment until the termination of this Agreement unless otherwise required by Law and (2) the Company shall otherwise remain subject to all of its obligations under this Agreement applicable thereto. The Company shall promptly provide Parent with a true and complete copy of any Conditional Commitment.